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Full text of "The judicial murder of Mary E. Surratt"

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i 



MARY E. SURRATT 




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T"HE 



JUDICIAL MURDER 



— OF- 



MARY E. SURRATT. 



DAVID MILLER DeWITT. 



BALTIMORE: 

JOHN MURPHY & CO. 

1895. 



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GOPTRIOHT, 1894, BT DaYID MILLBR DbWiTT. 



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" Oceana of horse-hair, continents of parchment, 
and learned-sergeant eloqrience, were it continued tiU 
the learned tongue wore itsdf small in the indefatiga- 
ble learned movihy cannot make the unjust just. The 
grand question still remains, Was the judgment just f 
If unjust, it will not and cannot get harbour for itsdf, 
or continue to have footing in this Universe^ which 
was made by other than One Unjust. Enforce it by 
never such statuiing, three readings, royal assents; 
blow it to the four vnnds with all manner of quilted 
trumpeters and pursuivants, in the rear of them never 
so many gibbets and hangmen, it will not stand, it 
cannot stand. From all souls of men, from all ends 
of Nature, from the Throne of God above, there are 
voices bidding it : Away ! Away ! " 

Past and Present. 



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CONTENTS. 

PRKIvIMINA^RY. 

Chapter I. 

PAGE. 

The Reign of Terror, 1 

Chapteb II. 
The Bureau of Military (In) Justice, - - - - 15 

PART I. 
TTHE MURDKR. 

Chapter I. 
The Opening of the Court. Was She Ironed ? - - 23 

Chapter II. 

Animus of the Judges. Insults to Beverdy Johnson and 

General Edward Johnson, 41 

Chapter III. 
Conduct of the Trial, 56 

Chapter IV. 
Arguments of the Defense, 70 

Chapter V. 
Charge of Judge Bingham, 82 



V 



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VI CONTENTS. 

Chapter VI. 

PAGE 

Verdict, Sentence and Petition, 91 

Chapter VII. 
The Death Warrant and Execution, _ _ . . 112 

Chapter VIII. 
Was it not Murder? The Milligan Case, - - - 126 



PART II. 
TTHK VINDICATION, 

Chapter I. 
Setting Aside the Verdict. Discharge of Jefferson Davis, 145 

Chapter II. 
Reversal on the Merits. Trial of John H. Surratt, - 165 

Chapter III. 
The Recommendation to Mercy, 182 

Chapter IV. 
Trial of Joseph Holt, 207 

Chapter V. 
Andrew Johnson Signs another Death Warrant, - - 236 

Chapter VI. 
Conclusion, 249 



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CHAPTER I. 
The Reign of Terrob. 

THE assassination of Abraham Lincoln burst 
upon the City of Washington like a black 
thunder-bolt out of a cloudless sky. On Monday, 
the 3d of April, 1865, Richmond was taken. On 
the succeeding Sunday (the ninth), General Lee with 
the main Army of the South surrendered. The re- 
bellion of nearly one-half the nation lay in its death- 
throes. The desperate struggle for Ijje unity of the 
Republic was ending in a perfect triumph ; and the 
loyal people gave full rein to their joy. Every night 
the streets of the city were illuminated. The chief 
officers of the government, one after another, were 
serenaded. On the evening of Tuesday, the eleventh, 
the President addressed his congratulations to an 
enthusiastic multitude from a window of the White 
House. On the night of Thursday (the thirteenth) 
Edwin M. Stanton, the Secretary of War, and 
Ulysses S. Grant, the victorious General of the Army 

1 



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2 MARY E. 8URRATT. 

of the North, were tumultuously greeted with ban- 
ners and music and cannon at the residence of the 
Secretary. The next day, Friday the 14th, was the 
fourth anniversary of the surrender of Fort Sumter 
to the South, and that national humiliation was to be 
avenged by the restoration of the flag of the United 
States to its proper place above the fort by the hand 
of the same gallant oiBcer who had been compelled 
to pull it down. In the evening, a torch-light 
procession perambulated the streets of the Federal 
Capital. Enthusiastic throngs filled the theatres, 
where the presence of great oflScials had been adver- 
tised by huge placards, and whose walls were every- 
where festooned with the American flag. After four 
years of agonizing but unabating strain, all patriots 
felt justified in yielding to the full enjoyment of the 
glorious relaxation. 

Suddenly, at its very zenith, the snap of a pistol 
dislimns and scatters this great jubilee, as though 
it were, indeed^ the insubstantial fabric of a vision. 
At half past ten that night, from the box of the 
theatre where the President is seated, a shot is heard ; 
a wild figure, hatless and clutching a gleaming knife, 
emerges through the smoke; it leaps from the box 
to the stage, falls upon one knee, recovers itself, 
utters one shout and waves aloft its bloody weapon ; 
then turns, limps across in front of the audience 
and disappears like a phantom behind the scenes. 
Simultaneously, there breaks upon the startled air 
the shriek of a woman, followed close by confused 



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PRELIMINARY. 3 

cries of " Water ! Water ! '^ and " The President 
is shot!" 

For the first few moments both audience and actors 
are paralyzed. One man alone jumps from the audi- 
torium to the stage and pursues the flying apparition. 
But, as soon as the hopeless condition of the Presi- 
dent and the escape of the assassin begin to transpire, 
angry murmurs of " Burn the Theatre ! '' are heard 
in the house, and soon swell into a roar in the street 
where a huge crowd has already assembled. 

The intermingling throng surges into the building 
from every quarter, and mounts guard at every exit. 
Not one of the company of actors is allowed to go 
out. The people seem to pause for a moment, as if 
awaiting from Heaven a retribution as sudden and 
awful as the crime. 

All their joy is turned to grief in the twinkling of 
an eye. The rebellion they had too easily believed 
to be dead could still strike, it seemed, a fatal blow 
against the very life of the Republic. • A panic seizes 
the multitude in and around the theatre, and from 
the theatre spreads, " like the Night,'' over the whole 
dty. And when the frightened citizens hear, as they 
immediately do, the story of the bloody massacre in 
the house of the Secretary of State, occurring at 
the same hour with the murder of the President, 
the panic swells into a reign of terror. The wildest 
stories find the quickest and most eager credence. 
Every member of the Cabinet and the General of 
the Army have been, or are about to be, kifled; 



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4 MARY E. SURRATT. 

the government itself is at a standstill; and the 
lately discomfited rebels are soon to be in possession 
of the Capital. Patriotic people, delivering them- 
selves over to a fear of they know not what, cry 
hoarsely for vengeance on they know not whom. 
The citizen upon whose past loyalty the slightest 
suspicion can be cast cowers for safety close to his 
hearth-stone. The terror-stricken multitude want 
but a leader cool and unscrupulous enough, to 
plunge into a promiscuous slaughter, such as stained 
the new-born revolution in France. A leader, 
indeed, they soon find, but he is not a Danton. He 
is a leader only in the sense that he has caught the 
same madness of terror and suspicion which has 
seized the people, that he holds high place, and that 
he has the power and is in a fit hiimor to pander to 
the panic. 

Edwin M. Stanton was forced by the tremendous 
crisis up to the very top of affairs. Vice-President 
Johnson, in the harrowing novelty of his position, 
was for the time being awed into passive docility. 
The Secretary of State was doubly disabled, if not 
killed. The General of the Army was absent. 
The Secretary of War without hesitation grasped 
the helm thus thrust into his hand, but, alas ! he 
immediately lost his head. His exasperation at the 
irony of fate, which could so ruthlessly and in a 
moment wither the triumph of a great cause by so . 
unexpected and overwhelming a calamity, was so 
profound and intense, his desire for immediate and 



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PRELIMINARY. O 

commensurate vengeance was so uncontrollable and 
unreasoning, as to distort his perception, unsettle his 
judgment, and thus cause him to form an estimate 
of the nature and extent of the impending danger 
as false and exaggerated as that of the most panic- 
stricken wretch in the streets. Personally, besides, 
he was unfitted in many respects for such an emer- 
gency. Though an able and, it may be, a great 
War-Minister, he exerted no control over his temper ; 
he habitually identified a conciliatory and charitable 
disposition with active disloyalty ; and, being un- 
popular with the people of Washington by reason 
of the gruffness of his ways and the inconsistencies 
of his past political career, he had reached the unal- 
terable conviction that the Capital was a nest of 
sympathizers with the South, and that he was sur- 
rounded by enemies of himself and his country. 

When, therefore, upon the crushing news that the 
President was slain, followed hard the announce- 
ment that another assassin had made a slaughter- 
hou^ of the residence of the Minister's own colleague, 
self-possession — the one supreme quality which was 
indispensable to a leader at such an awful juncture — 
forsook him and fled. 

Before the breath was out of the body of the 
President, the Secretary had rushed to the conclusion, 
unsupported as yet by a shadow of testimony, that 
the acts of Booth and of the assailant of Seward 
(at the moment supposed to be John H. Surratt) 
were the outcome of a widespread, numerous and 



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6 MARY E. SITRRATT. 

powerful conspiracy to kill, not only the President 
and the Secretary of State, but all the other heads of 
the Departments, the Vice-President and the General 
of the Army as well, and thus bring the government 
to an end ; and that the primary moving power of 
the conspiracy was the defunct rebellion as repre- 
sented by its titular President and his Cabinet, and 
its agents in Canada. This belief, embraced with 
so much precipitation, immediately became more 
than a T^elief ; it became a fixed idea in his mind. 
He saw, heard, felt and cherished every thing that 
favored it. He would see nothing, would hear 
nothing, and hated every thing, that in the slightest 
degree militated against it. Upon this theory he 
began, and upon this theory he prosecuted to the end, 
every effort for the discovery, arrest, trial and pun- 
ishment of the murderers. 

He was seconded by a lieutenant well-fitted for 
such a purpose — General Lafayette C. Baker, Chief 
of the Detective Force. In one of the two minority 
reports presented to the House of Representatives 
by the Judiciary Committee, on the Impeachment 
Investigation of 1867, this man and his methods 
are thus delineated : 

" The first witness examined was General Lafayette C. Baker, 
late chief of the detective police, and although examined on 
oath, time and again, and on various occasions, it is doubtful 
whether he has in any one thing told the truth, even by 
accident. In every important statement he is contradicted by 
witnesses of unquestioned credibility. And there can be no 
doubt that to his many previous outrages, entitling him to an 



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PRELIMINARY. 7 

unenviable immortdity, he has added that of wilful and delib- 
erate perjury ; and we are glad to know that no one member of 
the committee deems any statement* made by him as worthy of 
the slightest credit. What a blush of shame will tinge the 
cheek of the American student in future ages, when he reads 
that this miserable wretch for years held, as it were, in the 
hollow of his hand, the liberties of the American people. That, 
clothed with power by a reckless administration, and with his 
hordes of unprincipled tools and spies permeating the land 
everywhere, with uncounted thousands of the people's money 
placed in his hands for his vile purposes, this creature not only 
had power to arrest without crime or writ, and imprison without 
limit, any citizen of the republic, but that he actually did so 
arrest thousands, all over the land, and filled the prisons of the 
country with the victims of his malice, or that of his masters.** 

In this man's hands Secretary Stanton placed all 
the resources of the War Department, in soldiers, 
detectives, material and money, and commanded him 
to push ahead and apprehend all persons suspected 
of complicity in the assumed conspiracy, and to con- 
duct an investigation as to the origin and progress 
of the crime, upon the theory he had adopted and 
which, as much as any other, Baker was perfectly 
willing to accept and then, by his peculiar methods, 
establish. Forthwith was ushered in the grand car- 
nival of detectives. Far and wide they sped. They 
had orders from Baker to do two things : 

I. — To arrest all the " Suspect." II. — By prom- 
ises, rewards, threats, deceit, force, or any other 
effectual means, to extort confessions and procure 
testimony to establish the conspiracy whose existence 
had been postulated. 



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8 MARY B, SUBRATT. 

At two o'clock in the morning of Saturday, the 
fifteenth, they burst into the house of Mrs. Surratt 
and displaying the bloody collar of the coat oT the 
dying Lincoln, demanded the whereabouts of Booth 
and Surratt. It being presently discovered that 
Booth h^d escaped on horseback across the Navy 
Yard Bridge with David Herold ten minutes in his 
rear, a dash was made upon the livery-stables of 
Washington, their proprietors taken into custody, 
and then the whole of lower Maryland was invaded, 
the soldiers declaring martial law as they progressed. 
Ford's theatre was taken and held by an armed 
force, and the proprietor and employees were all 
swept into prison, including Edward Spangler, a 
scene-shifter, who had been a menial attendant of 
Booth's. The superstitious notion prevailed that 
the inanimate edifice whose walls had suflfered such 
a desecration was in some vague sense an accomplice ; 
the Secretary swore that no dramatic performance 
should ever take place there again ; and the suspicion 
was sedulously kept alive that the manager and the 
whole force of the company must have aided their 
favorite actor, or the crime could not have been so 
easily perpetrated and the assassin escaped. 

On the night of the fifteenth (Saturday) a locked 
room in the Kirkwood House, where Vice President 
Johnson was stopping, which had been engaged by 
Greorge A. Atzerodt on the morning of the four- 
teenth, was broken open, and in the bed were found 
a bowie-knife and a revolver, and on the wall a coat 



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PRELIMINARY. 9 

(subsequently identified as Herold's), in which was 
found, among other articles, a bank book of Booth's. 
The room had not been otherwise occupied — Atze«- 
rodt, after taking possession of it, having mysteri- 
ously disappeared. 

On the morning of the seventeeth (Monday), at 
Baltimore, Michael O'Laughliu was arrested as a 
friend of Booth's, and it was soon thought that he 
" resembled extremely " a certain suspicious stranger 
who, it was remembered, had been seen prowling 
about Secretary Stanton's residence on the night of 
the 13th, when the serenade took place, and there 
doing such an unusual act as inquiring for, and 
looking at. General Grant. 

On the same day at Fort Monroe, Samuel Arnold 
was arrested, whose letter signed " Sam " had been 
found on Saturday night among the effects of Booth. 

On the night of the seventeenth, also, the house 
of Mrs. Surratt with all its contents was taken pos- 
session of by the soldiers, and Mrs. Surratt, her 
daughter, and all the other inmates were taken into 
custody. While the ladies were making prepara- 
tions for their departure to prison, a man disguised 
as a laborer, with a sleeve of his knit undershirt 
drawn over his head, a pick-axe on his shoulder, 
and covered with mud, came to the door with the 
story that he was to dig a drain for Mrs. Surratt in 
the morning; and that lady asseverating that she 
had never seen the man before, he was swept with 
the rest to headquarters, and there, to the astonish- 



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10 MARY E. 8URRATT, 

ment of everybody, turned out to be the desperate 
assailant of the Se wards. 

During these few days Washington was like a 
city of the dead. The streets were hung with crape. 
The obsequies, which started on its march across the 
continent the colossal funeral procession in which 
the whole people were mourners, were being cele- 
brated with the most solemn pomp. No business 
was done except at Military Headquarters. Men 
hardly dared talk of the calamity of the nation. 
Everywhere soldiers and police were on the alert to 
seize any supposed or denounced sympathizer with 
the South. Mysterious and prophetic papers turned 
up at the White House and the War Department. 
Women whispered terrible stories of what they knew 
about the " Great Crime.^' To be able to give evi- 
dence was to be envied as a hero. 

And still the arch-devil of the plot could not be 
found ! 

The lower parts of Maryland seethed like a boiling 
pot, and the prisons of Washington were choking 
with the " suspect '^ from that quarter. Lloyd — the 
drunken landlord of the tavern at Surrattsville, ten 
miles from Washington, at which Booth and Herold 
had stopped at midnight of the fatal Friday for 
carbines and whisky — after two days of stubborn 
denial was at last frightened into confession ; and 
Doctor Mudd, who had set Booth's leg Saturday 
morning thirty miles from Washington, was in close 
confinement. All the intimate friends of the actor 



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PRELIMINARY. 11 

in Washington, in Baltimore, in Philadelphia, in 
New York and even in Montreal were in the clutches 
of the government. Surratt himself — the pursuit 
of whom, guided by Weichman, his former college- 
chum, liiB room-ornate, and the fevorite guest of his 
mother, had been instant and thorough — it was 
ascertained, had left Canada on the 12th of April 
and was back again on the 18th. 

But where was Booth? where Herold? where 
Atzerodt ? 

On the 20th, the Secretary of War applied the 
proper stimulus by issuing a proclamation to the 
following eflTect : 

"$50,000 reward will be paid by this department for the 
apprehension of the murderer of our late beloved President. 

"125.000 reward for the apprehension of John H. Surratt, 
one of Booth^s accomplices. 

"$25,000 reward for the apprehension of Herold, another of 
Booth's accomplices. 

" Liberal rewards will be paid for any information that shall 
conduce to the arrest of either of the above-named criminals or 
their accomplices. 

" All persons harboring or secreting the said persons, or either 
of them, or aiding or assisting in their concealment or escape, 
will be treated as accomplices in the murder of the President 
and the attempted assassination of the Secretary of State, and 
shall be subject to trial before a military commission and the 
punishment of death.'' 

What is noteworthy about this document is that 
Stanton had already made up his mind as to the 
guilt of the persons named as accomplices of Booth ; 
that he needed only their arrest, being assured of 



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12 MARY E. SURRATT. 

their consequent conviction ; and that he had already 
determined that their trial and the trial of all per- 
sons connected with the great crime, however re- 
motely, should be had before a military tribunal, 
and that the punishment to follow conviction should 
be death. 

At four o'clock in the morning of the very day 
this proclamation was issued, Atzerodt was appre- 
hended at the house of his cousin in Montgomery 
County, Md., about twenty-two miles northward of 
Washington, by a detail of soldiers, to whom, by 
the way, notwithstanding the arrest preceded the 
proclamation, $25,000 reward was subsequently 
paid. With Atzerodt his cousin, Richter, was taken 
also, O'ljaughlin, Payne, Arnold, Atzerodt and 
Richter, as they were severally arrested, were put 
into the custody of the Navy Department and con- 
fined on board the Monitor Saugus, which on the 
morning of Saturday, when the President died, had 
been ordered to swing out into the middle of the 
river opposite the Navy Yard, prepared to receive 
at any hour, day or night, dead or alive, the arch- 
assassin. Each of these prisoners was loaded with 
double irons and kept under a strong guard. On 
the 23d, Atzerodt, by order of the Secretary of War, 
was transferred to the Monitor Montauky to separate 
him from his cousin, and Payne, in addition to his 
double irons, had a ball and chain fastened to each 
ankle by the direction of the same officer. On the 
next day Spangler, who had hitherto been confined 



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PRELIMINARY. 13 

in the Old Capitol Prison, was transferred to one 
of the Monitors and presumably subjected to the 
same treatment. On the same day the following 
order was issued : 

** The Secretary of War requests that the prisoners on board 
iron-clads belonging to this department for better security 
against conversation shall have a canvass bag put over the 
head of each and tied around the neck, with a hole for proper 
breathing and eating, but not seeing, and that Payne be secured 
to prevent self-destruction." 

All of which was accordingly done. 

And still no Booth ! ' It seems as though the 
Secretary were mad enough to imagine that he could 
wring from Providence the arrest of the principal 
assassin by heaping tortures on his supposed accom- 
plices. 

At length, in the afternoon of the 26th — Wednes- 
day, the second week after the assassination — Col. 
Conger arrived with the news of the death of Booth 
and the capture of Herold on the early morning of 
that day; bringing with him the diary and other 
articles found on the person of Booth, which were 
delivered to Secretary Stanton at his private resi- 
dence. In the dead of the ensuing night, the body 
of Booth, sewed up in an old army blanket, arrived, 
attended by the dog-like Herold; and the living 
and the dead were immediately transferred to the 
Montauk. Herold was double ironed, balled and 
chained and hooded. The body of Booth was iden- 
tified ; an autopsy held ; the shattered bone of his 



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14 MARY E. SURRATT. 

neck taken out for preservation as a relic (it now 
hangs from the ceiling of the Medical Museum into 
which Ford's Theatre was converted, or did before 
the collapse) ; and then, with the utmost secrecy and 
with all the mystery which could be fabricated, under 
the direction of Col. Baker, the corpse was hurriedly 
taken from the vessel into a small boat, rowed to 
the Arsenal grounds, and buried in a grave dug in 
a large cellar-like apartment on the ground floor of 
the Old Penitentiary ; the door was locked, the key 
removed and delivered into the hands of Secretary 
Stanton. No effort was spared to conceal the time, 
place and circumstances of the burial. False stories 
were set afloat by Baker in furtherance of such pur- 
pose. Stanton seemed to fear an escape or rescue 
of the dead man's body ; and vowed that no rebel 
or no rebel sympathizer should have a chance to 
glory over the corpse, or a fragment of the corpse, 
of the murderer of Lincoln. 



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CHAPTER II. 

The Bureau of Military (In)Ju8tice. 

lU^ INGLING with the varied emotioDs evoked 
^ jL hy the capture and death of the chief crim- 
inal was a feeling of deepest exasperation that the 
foul assassin should after all have eluded the igno- 
minious penalty of his crime. Thence arose a savage 
disposition on the part of the governing powers to 
wreak this baffled vengeance first, on his inanimate 
body ; secondly, on the lives of his associates held 
so securely in such close custody ; and thirdly, on 
all those in high places who might be presumed to 
sympathize with his deeds. It was too horrible to 
imagine that the ghost of the martyred Lincoln 
should walk unavenged. So stupendous a calamity 
must of necessity be the outcome of as stupendous 
a conspiracy, and must in the very justice of things 
be followed by as stupendous a retribution. A sac- 
rifice must be offered and the victims must be forth- 
coming. To employ the parallel subsequently drawn 
by General Ewing on the trial of the conspirators : 
On the funeral pyre of Patroclus must be immolated 
the twelve Trojan captives. They were sure of 
Payne and of Herold. They held Arnold and 

15 



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16 MARY E. 8URRATT. 

O'Laughlin and Atzerodt and Spangler and Doctor 
Mudd — ^all the supposed satellites of Booth, save 
one. John H. Surratt could not be found. Officers 
in company with Weichman and Holahan, boarders 
at his mother^s house, who in the terror of the 
moment had given themselves up on the morning 
of the fifteenth, traced him to Canada, as has already 
been noticed, but had there lost track of him. They 
had returned disappointed ; and now Weichman and 
Holahan were in solitary confinement. Notwith- 
standing the large rewards out for his capture, as to 
him alone the all-powerful government seemed to 
be baffled. One consolation there was, however — 
if they could not find the son, they held the mother 
as a hostage for him, and they clung to the cruel 
expectation that by putting her to the torture of a 
trial and a sentence, they might force the son from 
his hiding place. 

In the meanwhile the Bureau of Military Justice, 
presided over by Judge- Advocate-General Holt, had 
been unceasingly at "work. General Baker with his 
posse of soldiers and detectives scoured the country 
far and wide for suspected persons and witnesses, 
hauled them to Washington and shut them up in 
the prisons. Then the Bureau of Military Justice 
took them in hand, and, when necessary, by promises, 
hopes of reward and threats of punishment, squeezed 
out of them the testimony they wanted. Colonel 
Henry L. Burnett, who had become an expert in 
such proceedings from having recently conducted 



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PRELIMINARY. 17 

the trial of Mllligan before a military tribunal at 
Indianapolis, was brought on to help Judge Holt in 
the great and good work. In the words of Greneral 
Ewing in his plea for Dr. Mudd : 

" The very frenzy of madness ruled the hour. Reason was 
swallowed up in patriotic passion, and a feverish and intense 
excitement prevailed most unfavorable to a calm, correct hear- 
ing and faithful repetition of what was said, especially by the 
suspected. Again, and again, and again the accused was cate- 
chised by detectives, each of whom was vieing with the other 
as to which should make the most important discoveries, and 
each making the examination with a preconceived opinion of 
guilt, and with an eager desire, if not determination, to find in 
what might be said the proofs of guilt. Again, the witnesses 
testified under the strong stimulus of a promised reward for 
information leading to arrest and followed by convictions." 

The Bureau conducted the investigation on the 
preconceived theory, adopted, as we have seen, by 
the Secretary of War, that the Confederate Govern- 
ment was the source of the conspiracy; and, by 
lavishing promises and rewards, it had no difficulty 
in finding witnesses who professed themselves to 
have been spies on the rebel agents in Canada and 
who were ready to implicate them and through 
them the President of the defunct Confederacy in 
the assassination. Richard Montgomery and San- 
ford Conover, who had been in personal communi- 
cation with these agents during the past year, were 
eagerly taken into the employ of the Bureau, and 
made frequent trips to Canada, to return every time 
laden with fresh proofs of the complicity of the rebels. 
2 



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18 MARY E. SURBATT. 

. To illustrate how the Bureau of Military Justice 
dealt with witnesses who happened to have been 
connected more or less closely with Botfth, and who 
were either reluctant or unable to make satisfactory 
disclosures^ here are two extracts from the evidence 
given on the trial of John H. Surratt in 1867. 

The first is from the testimony of Lloyd, the 
besotted keeper of the Surratt tavern : 

''I was first examined at Bryantown by Colonel Wells. I 
was next examined by two different persons at the Carroll 
prison. I did not know' either of their names. One was a 
military officer. I think some of the prisoners described him 
as Colonel Foster. I saw a man at the conspiracy trial as one 
of the Judges who looked very much like him. ^ ^ * I told 
him I had made a fuller statement to Colonel Wells than I could 
possibly do to him under the circumstances, while things were 
fresh in my memory. His reply was that it was not full enough, 
and then commenced questioning me whether I had ever heard 
any person say that something wonderful or something terrible 
was going to take place. I told him I had never heard anyone 
say so. Said he I have seen it in the newspapers. 

*^ He jumps up very quick off his seat, as if very mad, and 
asked me if I knew what I was guilty of. I told him, under 
the circumstances I did not. He said you are guilty as an 
accessory to a crime the punishment of which is death. With 
that I went up stairs to my rooift.'' 

The next is from the testimony of Lewis J. Car- 
land^ to whom Weichma^ confessed his remorse after 
the execution of Mrs. Surratt : 

''He [Weichman] said it would have been yery different 
with Mrs. Surratt if he had been let alone; that a statement 
had been prepared for him, that it was written out for him, and 



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PRBLIMINABY. 19 

that he was threatened with prosecution as one of the conspira- 
tors if he did not swear to it. He said that a detective had 
heen put into Carroll prison with him, and that this man had 
written out a statement which he said he had made in his 
sleep, and that he had to swear to that statement/' 

Let US add another; it is so short and yet so 
suggestive. It is from the testimony of James J. 
Gifford, who was a witness for the prosecution on 
both trials. 

"Q. — Do you know Mr. Weichman? 

"A. — 1 have seen him. 

" Q. — Were you in Carroll prison with him ? 

** A. — Yes, sir. 

" Q. — Did he say in your presence that an officer of the gov- 
ernment had told him that unless he testified to more than he 
had already stated they would hang him too ? 

" A. — I heard the officer tell him so." 

After a fortnight of such wholesale processes of 
arrest, imprisonment, inquisition, reward and intim- 
idation, the Bureau of Military Justice announced 
itself ready to prove the charges it had formulated. 
Thereupon two proclamations were issued by Presi- 
dent Johnson. One, dated May the first, after stat- 
ing that the Attorney General had given his opinion 
" that all persons implicated in the murder of the 
late President, Abraham Lincoln, and the attempted 
assassination of the Hon. William H. Seward, Sec- 
retary of State, and in an alleged conspiracy to 
assassinate other officers of the Federal Government 
at Washington City, and their aiders and abettors, 



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20 MABY E. SUEBATT. 

are subject to the jurisdiction of and legally triable 
before a Military Commission/^ ordered 1st, "that 
the Assistant Adjutant-General (W. A. Nichols) 
detail nine competent military officers to serve as a 
Commission for the trial of said parties, and that the 
Judge- Advocate-General proceed to prefer charges 
against said parties for their alleged offences, and 
bring them to trial before said Military Commis- 
sion/' 2d, " that Brevet Major-General Hartranft 
be assigned to duty as Special Provost-Marshal- 
General for the purpose of said trial and attendance 
upon said Commission, and the execution of its 
mandates/' 

The other proclamation, dated May 2nd, after re- 
citing that " it appears from evidence in the Bureau 
of Military Justice, that the atrocious murder of the 
late President, Abraham Lincoln, and the attempted 
assassination of the Hon. William H. Seward, Sec- 
retary of State, were incited, concerted, and procured 
by and between Jefferson Davis, late of Richmond, 
Va., and Jacob Thompson, Clement C. Clay, Beverly 
Tucker, George N. Sanders, William C. Cleary, and 
other rebels and traitors against the Government of 
the United States, harbored in Canada,'' offered the 
following rewards : 

"$100,000 for the arrest of Jefferson Davis. 

"$25,000 for the arrest of Clement C. Clay. 

" $26,000 for the arrest of Jacob Thompson, late of Mississippi. 

'•$26,000 for the arrest of Geo. N. Saunders. 

"$26,000 for the arrest of Beverly Tucker. 



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PREUMINABY. 21 

"110,000 for the arrest of Wm. C. Cleary, late clerk of 
Clement C. Clay. 

"The Provost-Marshal-General of the United States is di- 
rected to cause a description of said persons, with notice of the 
above rewards, to be published." 

At this date the President of the defunct Confed- 
eracy was a fugitive, without an army ; and bands 
of U. S. Cavalry were already on the scout to inter- 
cept his flight. Military Justice, however, was too 
impatient to await the arrest of the prime object of 
its sword ; and in obedience to the first proclamation 
proceeded without delay to organize a court to try 
the prisoners selected from the multitude undergoing 
confinement as the fittest victims to appease the 
shade of the murdered President. Over some of the 
" suspect '' the Judge- Advocates for a time vacil- 
lated, whether to include them in the indictment or 
to use them as witnesses ; but, after a season of rigid 
examinations, renewed and revised, they at last con- 
cluded that such persons would be more available 
in the latter capacity. 

On the third day of May the funeral car, which, 
leaving Washington on the twenty-first of April, 
had borne the body of the lamented Lincoln through 
State aft;er State, arrived at last at Springfield ; and 
on the following day the cherished remains were 
there consigned to the tomb. On the sixth, by 
special order of the Adjutant-General, a Military 
Commission was appointed to meet at Washington 
on Monday, the eighth day of May, or as soon 



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22 MARY E. SURRATT. 

thereafter as practicable, ^^for the trial of David 
E. Herold, George A. Atzerodt, Lewis Payne, 
Michael O'Laughlin, Edward Spangler, Samuel 
Arnold, Mary E. Surratt, Samuel A. Mudd and 
such other prisoners as may be brought before it, 
implicated in the murder of the late President and 
in the attempted assassination of the Secretary of 
State and in an alleged conspiracy to assassinate 
other officers of the Federal Government at Wash- 
ington City, and their aiders and abettors. By 
order of the President of the United States/^ And 
so, all things being in readiness, let the curtain rise. 



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F>A.RT I. 

THE MURDER. 



CHAPTER I. 
The Opening of the Court. 

ON the ninth day of May the Commission met 
but only to adjourn that the prisoners might 
employ counsel. On the same day, two of its 
members, General Cyrus B. Comstock and Colonel 
Horace Porter — names to be noted for what may 
have been a heroic refusal — were relieved from the 
duty of sitting upon the Commission, and two other 
ofiScers substituted in their stead. 

So that Tuesday; May 10th, 1865— twenty-six 
days after the assassination, a period much too short 
for the intense excitement and wild desire for venge- 
ance to subside — may properly be designated as the 
first session of the Court. On the early morning 
of that day — before daylight — Jefferson Davis had 
been captured, and was immediately conducted, not 
to Washington to stand trial for his alleged com- 

23 



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24 MARY E. SURRATT. 

pHclty in the assassination, but to Fort Monroe. 
On the next day Clement C. Clay, also, surrendered 
himself to the United States authorities, and was 
sent, not to Washington to meet the awful charge 
formulated against him, but to the same military 
fortress. 

The room in which the Commission met was in 
the northeast corner of the third story of the Old 
Penitentiary ; a building standing in the U. S. Ar- 
senal Grounds at the junction of the Potomac with 
the Eastern Branch, in a room on the ground floor 
of which the body of Booth had been secretly buried. 
Its windows were guarded by iron gratings, and -it 
communicated with that part of the prison where 
the accused were now confined, by a door in the 
western wall. The male prisoners had been removed 
some days before from the Monitors to the Peniten- 
tiary, where Mrs. Surratt was already incarcerated, 
and each of them, including the lady, was now im- 
mured in a solitary cell under the surveillance of a 
special guard. 

Around a table near the eastern side of this room 
sat, resplendent in full uniform, the members of the 
Court. At the head as President was Major-General 
David Hunter — a stern, white-headed soldier, sixty- 
three years old; a fierce radical ; the first officer to 
organize the slaves into battalions of war ; the warm 
personal friend of Lincoln, at the head of whose 
corpse he had grimly sat as it rested from place 
to place on the triumphal progress to its burial, and 



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HER TRIAL AND EXECUTION. 25 

from whose open grave he had hurried, in no very 
judicial humor to say the least, to take his seat among 
the Judges of the accused assassins. On his right 
sat Major-General Lew Wallace, a lawyer by pro- 
fession; afterwards the President of the Court- 
Martial which tried and hung Henry Wirz; but 
now, by a sardonic freak of destiny, known to 
all the world as the tender teller of "Ben Hur, 
a Tale of the Christ/' To the right of General 
Wallace sat Brevet Brigadier-General James A. 
Ekin and Brevet Colonel Charles A. Tompkins; 
about whom the only thing remarkable is that they 
had stepped into the places of the two relieved offi- 
cers, Colonel Tompkins being the only regular army 
officer on the Board. On the left of General Hunter 
sat, first. Brevet Major-General August V. Kautz, 
a native of Germany ; next, Brigadier-General Rob- 
ert S. Foster, who may or may not have been the 
"Colonel Foster '^ alluded to in the testimony of 
Lloyd quoted above, as threatening the witness and 
as afterwards being seen by him on the Commis- 
sion — the presence of an officer, previously engaged 
by the Government in collecting testimony against 
the accused, as one of the judges to try him not 
being considered a violation of Military Justice. 
Next sat Brigadier-General Thomas Mealey Harris, 
a West Virginian, and the author of a boolt entitled 
" Calvinism Vindicated ; '^ next, Brigadier-General 
Albion P. Howe, and last, Lieutenant-Colonel David 
R. Clendenin. 



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26 MABY E. 8UBRATT. 

Not one of these nine men could have withstood 
the challenge which the common law mercifully puts 
into the hands of the most abandoned culprit. They 
had come together with one determined and un- 
changeable purpose — to avenge the foul murder of 
their beloved Commander-in-Chief. They dreamt 
not of acquittal. They were, necessarily, from the 
very nature of their task, organized, to convict. 

The accused were asked, it is true, whether they 
had any objections to any member of the Court. 
But this was the emptiest of forms, as bias is no 
cause of challenge in military procedure, and per- 
emptory challenges are unknown. 

Moreover, it was nothing but a cruel mockery to 
offer to that trembling group of prisoners an oppor- 
tunity, which, if any one of them had the temerity 
to embrace, could only have resulted in barbing 
with the sting of personal insult the hostile predis- 
position of the judges. 

At the foot of the table around which the Court 
sat — ^the table standing parallel with the north side 
of the room — there was another, around which were 
gathered the three prosecuting officers, who, accord- 
ing to military procedure, were also members of the 
Commission. 

First, was Brigadier-General Joseph Holt, the 
Judge- Advocate of the U. S. Army, and the Re- 
corder of the Commission. During his past mili- 
tary career he had distinguished himself on many a 
bloody court-martial. 



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HER TRIAL AND EXECUTION. 27 

Second, designated by General Holt as First 
Assistant or Special Judge-Advocate, was Hon. 
John A. Bingham, of Ohio — long a Representative 
in Congress, then for a short interval a Military 
Judge- Advocate, now a Representative in Congress 
again, and to become in the strange vicissitudes of 
the near future, one of the managers of the impeach- 
ment of President Johnson, whom he now cannot 
praise too highly. He was one of those fierce and 
fiery western criminal lawyers, gifted with that sort 
of vociferous oratory which tells upon jurors and 
on the stump, by nature and training able to see 
but one side to a case and consequently merciless to 
his victims. His special function was to cross- 
examine and brow-beat the witnesses for the defense, 
a branch of his profession in which he was proudly 
proficient, and, above all, by pathetic appeals to 
their patriotism and loyalty, and by measureless 
denunciations of the murder of their Commander- 
in-Chief and of the Rebellion, to keep up at a white 
heat the already burning passions of the officers 
composing the tribunal. Next to him came Colonel 
Henry L. Burnett; brought from Indiana where 
he had won recent laurels in conducting the trial 
of Milligan for treason before a Military Com- 
mission — laurels, alas! soon to be blasted by the 
decision of the U. S. Supreme Court pronouncing 
that and all other Military Commissions for the 
trial of citizens in places where the civil courts 
are open illegal, and setting free the man this 



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28 MABY E. SUERATT. 

zealous public servant had been instrumental in 
condemning to death. 

In the centre of the room was a witness-stand 
facing the Court. To the left of the witness-stand a 
table for the official reporters. Along the western 
side and directly opposite the Court was a platform 
about a foot high and four feet broad, with a strong 
railing in front of it. This was the prisoners' dock. 
The platform was divided near the left hand or 
southern corner by the doorway which led to the 
cells. In front of the southern end of the dock and 
behind the witness-stand was the table of the pris- 
oners' counsel. 

At the appointed hour the door in the western 
side opens and an impressive and mournful proces- 
sion appears. Six soldiers armed to the teeth are 
interspersed among seven male prisoners and one 
woman. 

First walks Samuel Arnold, the young Balti- 
morean, who is to sit at the extreme right {i. e., of 
the spectators), followed close by his armed guard ; 
next, Dr. Samuel T. Mudd and a soldier; next, 
Edward Spangler and a soldier; next, Michael 
O'Laughlin, another Baltimorean, and his soldier; 
next, George B. Atzerodt and a soldier ; next, Lewis 
Payne, a tall gladiator, though only twenty years 
old, and his soldier; and then Davi^ E. Herold, 
looking like an insignificant boy, who is to sit next 
the door. As they enter, their fetters clanking at 
every step, they turn to their left and take seats on 



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HEB TRIAL AND EXECUTION. 29 

the platform in the order named^ the six soldiers 
being sandwiched here and there between two of 
the men. 

Each of these prisoners, during the entire trial, 
was loaded down with irons made as massive and 
uncomfortable as possible. Their wrists were bound 
with the heaviest hand-cuffs, connected by bars of 
iron ten inches long (with the exception of Dr. 
Mudd, whose hand-cuffs were connected by a chain), 
so that they could not join their hands. Their legs 
were weighed down by shackles joined by chains 
made short enough to hamper their walk. In addi- 
tion to these fetters, common to all, Payne and 
Atzerodt had, attached by chains to their legs, huge 
iron balls, which their guards had to lift and carry 
after them whenever they entered or left the Court 
room. 

Last, there emerges from the dungeon-like dark- 
ness of the doorway the single female prisoner, Mary 
E. Surratt. She, alone, turns to her right and, con- 
sequently, when she is seated has the left hand corner 
of the platform to herself. But she is separated 
from her companions in misery by more than the 
narrow passage-way that divides the dock ; for she 
is a lady of fair social position, of unblemished 
character and of exemplary piety, and, besides, she 
is a mother, a widow, and, in that room amongst all 
those soldiers, lawyers, guards, judges and prisoners, 
the sole representative of her sex. Her womanhood 
is her peculiar weakness, yet still her only shield. 



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30 MARY E. SURRATT. 

Is she too ironed ? 

The unanimous testimony of eye-witnesses pub- 
lished at the time of the trial is, that, though not 
hand-cuffed, she was bound with iron " anklets '^ on 
her feet. And this detail, thus universally pro- 
claimed in the Northern Press and by loyal writers, 
was mentioned not as conveying the slightest hint of 
reprobation, but as constituting, like the case of the 
male prisoners, a part of the appropriate treatment 
by the military of a person suffering under such a 
charge. And, moreover, no contemporaneous denial 
of this widespread circumstance was anywhere made, 
either by Provost-Marshal, Counsel, Judge-Advo- 
cate or member of the Court. It passed unchallenged 
into history, like many another deed of shame,' over 
which it is a wonder that any man could glory, but 
which characterized that period of frenzy. 

Eight years after, during the bitter controversy 
between Andrew Johnson and Joseph Holt over the 
recommendation of mercy to Mrs. Surratt, General 
Hartranft, the former Special Provost-Marshal in 
charge of the prisoners, first broke silence and, com- 
ing to the aid of the sorely-tried Ex- Judge- Advocate, 
sent him a vehement categorical denial that Mrs. 
Surratt was ever manacled at any time, or that there 
was ever a thought of manacling her in any one's 
mind. Now, what force should be given to such a 
denial by so distinguished an officer, so long delayed 
and in the face of such universal contemporaneous 
affirmation ? 



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HER TRIAL AND EXECUTION. 31 

No one knows how close and exclusive the charge 
of the prisoners by the special Provost-Marshal was, 
nor how liable to interruption, interference and super- 
session by the omnipotent Bureau of Military Justice, 
or by the maddened Secretary of War and his obse- 
quious henchmen. 

At the time the naked assertion wag made, to heap 
indignities upon the head of the only woman in the 
whole country whom the soldiery took for granted 
was the one female fiend who helped to shed the 
blood of the martyred President, was so consonant 
with the angry feeling, in military circles, that an 
oflficer, having only a general superintendence over 
the custody and treatment of what was called " a 
band of fiends,^^ would be very likely to overlook 
such a small matter as that the she-assassin was not 
exempted, in one detail, from the contumelies and 
cruelties it was thought patriotic to pile upon her 
co-conspirators. The only wonder ought to be that 
they relieved her from the hand-cuffs. They appear 
to have discriminated in the case of Dr. Mudd also, 
substituting a chain for an inflexible bar so that he 
for one could move his hands. There may have 
been some unmentioned physical reasons for both 
of these alleviations, but we may rest assured that 
neither sex, in the one case, nor profession in the 
other, was among them. 

General Hartranft (or any other Greneral) never 
denied, or thought it necessary to deny, that the 
seven male prisoners sat through the seven weeks 



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32 MARY E. SURRATT. 

of the trial, loaded, nay tortured, with irons. And 
there is no doubt that this unspeakable outrage, if 
thought of at all at the trial by the soldiery — high 
or low — ^SQ far from being thought of as a matter 
of reprobation, was a subject of grim merriment or 
stern congratulation. 

Eight years, however, passed away — eight years, 
in which a fund of indignation at such brutality, 
above all to a woman, had been silently accumulat- 
ing, until at length to a soldier, whose beclouding 
passions of the moment had in the meantime cooled 
down, its weight made every loop-hole of escape an 
entrance for the very breath of life. 

The entire atmosphere had changed, and denials 
became the order of the day. Memory is a most 
convenient faculty ; and to forget what the lapse of 
years has at last stamped with infamy is easy, when 
the event passed at the time as a mere matter of 
course. Leaving these tardy repudiators of an 
iniquity, the responsibility for which in the day 
of its first publication they tacitly assumed with 
the utmost complacency, to settle the question with 
posterity ; — we insist that the preference is open to 
writers upon the events of the year 1865 to rely 
upon the unprejudiced and unchallenged statements 
of eye-witnesses ; and, therefore, we do here reafl&rm 
that Mary E. Surratt walked into the court-room, 
and sat during her trial, with shackles upon her 
limbs. 



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HER TRIAL AND EXECUTION. 33 

At this late day it is a most natural supposition 
that these nine stalwart military heroes, sitting com- 
fortably around their table, arrayed in their bright 
uniforms, with their own arms and their own legs 
unfettered, must have felt at least a faint flush of 
mingled pity, shame and indigqation, as they looked 
across that room at that ironed row of human beings. 

Culprits arraigned before them, guarded by armed 
soldiery, without arras themselves — why, in the 
name of justice, drag them into Court and force 
them to sit through a long trial, bound with iron, 
hand and foot? Was it to forestall a last possible 
effort of reckless and suicidal despair ? 

These brave warriors could not have feared the 
naked arm of Payne, nor have indulged the childish 
apprehension that seven unarmed men and one un- 
armed woman might overpower six armed soldiers 
and nine gallant ofl&cers, and effect their escape from 
the third story of a prison guarded on all sides with 
bayonets and watched by detective police ! And yet, 
so far as appears, no single member of the Court, to 
whom such a desecration of our common humanity 
was a daily sight for weeks, thought it deserving of 
notice, much less of protest. 

There is but one explanation of this moral insen- 
sibility, and that applies with the same force to the 
case of the woman as to those of the men. It is, 
that the accused were already doomed. For them 
no humiliation could be thought too deep, no indig- 
nity too vile, no hardship too severe, because their 
3 



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34 MARY E. SURRATT. 

guilt was predetermined to be clear. And the mem- 
bers of the Military Commission, as they looked 
across the room at that sorry sight, saw nothing 
incongruous with justice, or even with the most 
chivalrous decorum, that the traitorous murderers 
of their beloved Commander-in-Chief should wear 
the shackles which were the proper precursors of the 
death of ignominy, they were resolved the outlaws 
should not escape. 

We, civilians, must ever humbly bear in mind 
that the rule of the common law, that every person 
accused of crime is presumed to be innocent until his 
guilt is established beyond a reasonable doubt — a 
rule the benignity of which is often sneered at by 
soldiers as giving occasion for lawyers' tricks and 
quibbles, and as an impediment to swift justice, is 
reversed in military courts, where every person 
accused of crime is presumed to be guilty until he 
himself prove his innocence. 

After the prisoners had been seated, and the mem- 
bers of the Commission, the Judge- Advocates and 
the official reporters sworn in, the accused were sev- 
erally arraigned. There was but one Charge against 
the whole eight. Carefully formulated by the three 
Judge-Advocates upon the lines of the theory 
adopted by the Secretary of War, and which Gen. 
Baker and the Bureau of Military Justice had been 
moving heaven and earth to establish, it was so con- 
trived as to allege a crime of such unprecedented, far- 
reaching and profound heinousness as to be an 



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HER TRIAL AND EXECUTION. 35 

adequate cause of such an unprecedented and pro- 
found calamity. 

The eight prisoners were jointly and severally 
charged with nothing less than having, in aid of the 
Rebellion, " traitorously '^ conspired, " together with 
one John H. Surratt, John Wilkes Booth, Jefferson 
Davis, George N. Sanders, Beverley Tucker, Jacob 
Thompson, William C. Cleary. Clement C. Clay, 
George Harper, George Young and others unknown, 
to kill and murder '^ " Abraham Lincoln, late Presi- 
dent of the United States and Commander-in-Chief 
of the Army and Navy thereof, Andrew Johnson, 
then Vice-President, Wm. H. Seward, Secretary of 
State, and Ulysses S. Grant, Lieutenant-General ; " 
and of having, in pursuance of such "traitorous 
conspiracy,'^ "together with John Wilkes Booth 
and John H. Surratt" " traitorously '^ murdered 
Abraham Lincoln, "traitorously" assaulted with 
intent to kill, William H. Seward, and lain in wait 
"traitorously" to murder Andrew Johnson and 
Ulysses S. Grant. 

On this elastic comprehensive Charge, in which 
treason and murder are vaguely commingled, every 
one of the men, and Mary E. Surratt, were arraigned, 
plead not guilty, and were put upon trial. There is 
no doubt, by the way, that the Secretary of War 
would have been included as one of the contemplated 
victims, had not Edwin M. Stanton borne so promi- 
nent a part in the prosecution ; and it was for this 
reason, and not because of any change in the evi- 



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36 MARY E. 8URRATT. 

denoe, that General Grant stood alone, as the mark 
of O'Laughlin. 

To this single Charge there was, also, but a single 
Specification. This document alleged that the design 
of all these traitorous conspirators was, to deprive 
the Army and Navy of their Commander-in-Chief 
and the armies of their Commander ; to prevent a 
lawful election of ^President and Vice-President ; 
and by such means to aid and comfort the Rebellion 
and overthrow the Constitution and laws. 
- It then alleged the killing of Abraham Lincoln 
by Booth in the prosecution of the conspiracy, and 
charged the murder to be the act of the prisoners, 
as well as of Booth and John H. Surratt. It then 
alleged that Spangler, in furtherance of the con- 
spiracy, aided Booth in obtaining entrance to the 
box of the theatre, in barring the door of the theatre 
box, and in effecting his escape. Then, that Herold, 
in furtherance of the conspiracy, aided and abetted 
Booth in the murder, and in effecting his escape. 
Then, that Payne, in like furtherance, made the 
murderous assault on Seward and also on his two 
sons and two attendants. Then, that Atzerodt, in 
like furtherance, at the same hour of the night, lay 
in wait for Andrew Johnson with intent to kill him. 
Then, that Michael O'Laughlin, in like furtherance, 
on the nights of the 13th and 14th of April, lay in 
wait for General Grant with like intent. Then, that 
Samuel Arnold, in prosecution of the conspiracy, 
*^ did, on or before the 6th day of March, 1866, and 



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HEK TRIAL AND EXECUTION. 37 

on divers other days and times between that day 
and the 15th day of April, 1865, combine, conspire 
with and counsel, abet, comfort and support" Booth, 
Payne, Atzerodt, O'Laughlin and their confederates. 
Then, " that, in prosecution of the conspiracy, Mary 
E. Surratt, on or before the 6th of March, 1865, 
and on divers other days and times between that day 
and the 20th of April, 1865, received, entertained, 
harbored and concealed, aided and assisted '' Booth, 
Herold, Payne, John H. Surratt, O'Laughlin, 
Atzerodt, Arnold and their confederates, " with the 
knowledge of the murderous and traitorous con- 
spiracy aforesaid, and with intent to aid, abet and 
assist them in the execution thereof, and in escaping 
from justice." And, lastly, that in prosecution of 
the conspiracy Samuel A. Mudd did from on or 
before the 6th day of March, to the 20th of April 
"advise, encourage, receive, entertain, harbor and 
conceal, aid and assist" Booth, Herold, Payne, John 
H. Surratt, O'Laughlin, Atzerodt, Mary E. Surratt, 
Arnold and their confederates, in its execution and 
their escape. 

After the prisoners, who as yet had no counsel, 
had pleaded not guilty to the Charge and Specifica- 
tion, the Court adopted rules of proceeding — one of 
which was that the sessions of the Court should be 
secret, and no one but the sworn officers and the 
counsel for the prisoners, also sworn to secrecy, 
should be admitted, except by permit of the Presi- 
dent of the Commission ; and that only such portions 



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38 MARY E. SURRATT. 

of the testimony as the Judge- Advocate should des- 
ignate should be made public. 

On the next day (Thursday, May 11th), Mr. 
Thomas Ewiug, Jr. and Mr. Frederick Stone ap- 
peared as counsel for Dr. Mudd, and Mr. Frederick 
A. Aiken and Mr. John W. Clampitt for Mrs. 
Surratt; and on the succeeding day (12th), Mr. 
Frederick Stone appeared for Herold " at the earnest 
request of his widowed mother and estimable sis- 
ters ; '' Greneral Ewing for Arnold (and on Monday, 
the 15th, for Spangler) ; Mr. Walter S. Cox for 
O'Laughlin, and Mr. William E. Doster for Payne 
and Atzerodt. 

By the rules of the Commission no counsel could 
appear for the prisoners unless he took the " iron- 
clad oath '^ or filed evidence of having taken it. So 
supersensitive was the loyalty of the Court that it 
could not brook the presence of a "sympathizer 
with the South,'' even in such a confidential relation 
as counsel for accused conspirators in aid of the 
Rebellion. 

The demeanor of the Court towards the counsel 
for the defense, reflecting as in a mirror the humor 
of the Judge-Advocates, was highly characteristic. 
Sometimes they were treated with haughty indiffer- 
ence, sometimes with ironical condescension, often 
with contumely, generally with contempt. Their 
objections were invariably overruled, unless acceded 
to by the Judge- Advocate. The Commission could 



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HER TRIAL AND EXECUTION. 39 

not conceal its secret opinion that they were engaged 
in a disreputable and disloyal employment. 

This statement must be somewhat qualified, how- 
ever, so far as it relates to General Ewing. He was, 
or had been recently, of equal rank in the army of 
the Union with the members of the Court. He was 
a brother-in-law of General Sherman, and he had 
acquired a high reputation for gallantry and skill, 
as well as loyalty^ during the war. That such a 
distinguished fellow-soldier should appear to defend 
the fiendish murderers of their beloved Commander- 
in-Chief— outlaws they were detailed as a Court to 
hang — evidently perplexed and disconcerted these 
military Judges and tended in some degree to curb 
the over-bearing insolence of the Special Judge- 
Advocate. Thus, this able lawyer and gallant oflBcer 
and noble man was enabled to be "the leading spirit 
of the defense ; ^^ and, as we shall see, he wrought 
the miracle of plucking from the deadly clutches of 
the Judge- Advocates the lives of every one of the 
men he defended. But this instance was a most 
notable exception. As a rule, even the silent pres- 
ence of the counsel for the accused jarred upon the 
feelings of the Court, and their vocal interference 
provoked, at intervals, its outspoken animadversion. 
A trifling incident will serve to illustrate. 

The witnesses, while giving their testimony, were 
required to face the Court, so that they necessarily 
turned their backs on the counsel for the prisoners 
who were placed some distance behind the witness- 



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40 MARY E. SURRATT. 

stand. These counsel were also forced to cross- 
examine the witnesses for the prosecution, and 
interrogate their own, without seeing their faces; 
and as often as a witness in instinctive obedience to 
the dictates of good manners would turn round to 
answer a question, the President of the Court would 
check him by a ^^ sharp reprimand ^^ and the stem 
admonition : " Face the Court ! " The confusion of 
a witness, especially for the defense, when thundered 
at in this way by General Hunter, and the reiterated 
humiliation of counsel implied in the order, seem 
to have only called forth the wonder that witnesses 
"would persist in turning towards the prisoners^ 
counsel ! " 

Clearly these lawyers were an unmeaning, an im- 
peding, an offensive, though unavoidable, superfluity. 



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CHAPTER II. 
Animus of the Judges. 

ON Saturday, the 13th of May, an incident 
occurred which throws much light upon the 
judicial teraper of the Court at the very beginning 
of the trial. On that day Reverdy Johnson ap- 
peared as counsel for Mrs. Surratt. Admitted to 
the bar in 1815, Senator of the United States as far 
back as 1845, Attorney-General of the United States 
as long ago as 1849, and holding the position of 
Senator of the United States again at that very 
moment; having taken the constitutional oath in 
all the Courts including the Supreme Court of the 
United States at whose bar he was one of the most 
eminent advocates; three years after this time to be 
Minister Plenipotentiary to England ; as he stood 
there, venerable both in years and in honors, ap- 
pearing at great personal and professional sacrifice, 
gratuitously, for a woman in peril of her life, one 
would have thought him secure at least from insult. 
Yet no sooner did he announce his intention, if the 
Court would permit him at any time to attend to his 
imperative duties elsewhere, to act as counsel, than 
the President of the Commission read aloud a note 

41 



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42 MARY E. SURRATT. 

he had received from one of his colleagues objecting 
" to the admission of Reverdy Johnson as a counsel 
before this Court on the ground that he does not 
recognize the moral obligation of an oath that is 
designed as a test of loyalty;'' and, in support of 
the objection, referring to Mr. Johnson's letter to 
the people of Maryland pending the adoption of 
the new constitution of 1864. 

The following colloquy then took place : 

"Mr. Johnson. — May I ask who the member of the Court is 
that makes that objection ? 

"The President. — Yes, sir, it is General Harris, and, if he 
had not made it, I should have made it myself. 

" Mr. Jolinson. — I do not object to it at all. The Goart will 
decide if 1 am to be tried. 

"The President.— The Court will be cleared. 

" Mr. Johnson. — I hope I shall be heard. 

" General Ekin. — I think it can be decided without clearing 
the Court. 

" General Wallace. — I move that Mr. Johnson be heard. 

" The President and others. — Certainly. 

" Mr. Johnson. — Is the opinion here to which the objection 
refers? 

"The President.— I think it is not." 

It was discovered, farther on, that General Harris 
by his own admissions had not even seen the opinion 
since he had read it a year ago, and that his objec- 
tion, involving so grave an attack upon the moral 
character of so distinguished a man, was based upon 
a mere recollection of its contents after that lapse 
of time. 



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HER TRIAL AND EXECUTION. 43 

Naturally, the gray-haired statesman and lawyer 
was indignant at this premeditated insult. In his 
address to the Court he repudiated with scorn the 
interpretation put upon his letter by his accuser. 
He explained the circumstances under which the 
opinion was delivered ; that the Maryland Conven- 
tion had prescribed an oath to the voter which they 
had no right to exact ; " and all that the opinion 
said, or was intended to say, was, that to take the 
oath voluntarily was not a craven submission to 
usurped authority, but was necessary in order to 
enable the citizen to protect his rights under the then 
constitution ; and that there was no moral harm in 
taking an oath which the Convention had no au- 
thority to impose." 

Among other things he said : 

** There is no member of this Court, including the President, 
and the member that objects, who recognizes the obligation of 
an oath more absolutely than I do ; and there is nothing in my 
life, from its commencement to the present time, which would 
induce me for a moment to avoid a comparison in all moral 
respects between myself and any member of this Court. 

" If such an objection was made in the Senate of the United 
States, where I am known, I forbear to say how it would be 
treated. 

''I have lived too long, gone through too many trials, ren- 
dered the country such services as my abilities enabled me, and 
the confidence of the people in whose midst I am has given me 
the opportunity, to tolerate for a moment — come from whom it 
may — such an aspersion upon my moral character. I am glad 
it is made now, when I have arrived at that period of life when 
it would be unfit to notice it in any other way. 



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44 MARY E. 8URRATT. 

'* I am here at the instance of that lady (pointing to Mrs. 
Surratt) whom I never saw until yesterday, and never heard of, 
she being a Maryland hidy ; and thinking that I could be of 
service to her, and protesting as she has done her innocence to 
me — of the facts I know nothing — because I deemed it right, 
I deemed it due to the character of the profession to which I 
belong, and which is not inferior to the noble profession of 
which you are members, that she should not go undefended. I 
knew I was to do it voluntarily, without compensation ; the law 
prohibits me from receiving compensation ; but if it did not, 
understanding her condition, I should never have dreamed 
of refusing upon the ground of her inability to make com- 
pensation/' 

General Harris, in reply, insisted that the remarks 
of Mr. Johnson, explanatory of the letter, corrobo- 
rated his construction. " I understand him to say 
that the doctrine which he taught the people of his 
state was, that because the Convention had framed 
an oath, which was unconstitutional and illegal in 
his opinion, therefore it had no moral binding force, 
and that people might take it and then go and 
vote without any regard to the subject matter of 
the oath.^^ 

Mr. Johnson, interrupting, denied having said 
any such thing. General Hunter, thereupon, to help 
his colleague out, had the remarks read from the 
record. Mr. Johnson assenting to the correctness 
of the report. General Harris continued : "If that 
language does not justify my conclusion, I confess 
I am unable to understand the English language ; '' 
and then repeated his construction of the letter. 



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HER TRIAL AND EXECUTION, 45 

After he had concluded, Mr. Johnson endeavored 
to show the author of " Calvinism Vindicated ^^ that 
he did not understand the English language, by 
pointing out the distinction between stating " there 
was no harm in taking an oath, and telling the 
people of Maryland that there would be no harm in 
breaking it after it was taken." Again repelling 
the misconstruction attempted to be put upon his 
words, he proceeded to open a new line as follows : 

"But, as a legal question, it is something new to 
me that the objection, if it was well founded in fact 
is well founded in law. Who gives to the Court 
the jurisdiction to decide upon the moral character 
of the counsel who may appear before them ? Who 
makes them the arbiters of the public morality and 
professional morality ? What authority have they, 
under their commission, to rule me out, or to rule 
any other counsel out, upon the ground, above all, 
that he does not recognize the validity of an oath, 
even if they believed it ? " 

Greneral Harris, in rejoinder, stated that under the 
rules adopted by the Commission gentlemen appear- 
ing as counsel for the accused must either produce 
a certificate of having taken the oath of loyalty or 
take it before the Court, and that therefore the Court 
had a right to inquire whether counsel held such 
opinions as to be incompetent to take the oath. He 
then expressed his gladness " to give the gentleman 
the benefit of his disclaimer. It is satisfactory to 
me, but it is, I must insist, a tacit admission that 



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46 MARY E. 8URRATT. 

there was some ground for the view upon which my 
objection was founded/' 

Mr. Johnson closed this irritating discussion by 
saying : 

"The order under which you are assembled gives you no 
authority to refuse me admission because you have no authority 
to administer the oath to me. I have taken the oath in the 
Senate of the United States — the very oath that you are admin- 
istering ; I have taken it in the Circuit Court of the United 
States ; I have taken it in the Supreme Court of the United 
States ; and I am a practitioner in all the Courts of the United 
States in nearly all the States ; and it would be a little singular 
if one who has a right to appear before the supreme judicial 
tribunal of the land, and who has a right to appear before one 
of the Legislative departments of the Government whose law 
creates armies, and creates judges and courts-martial, should 
not have a right to appear before a court-martial. I have said 
all that J proposed to say." 

The President of the Court, who had already made 
himself a party to this gross insult to a distinguished 
counsel — as if disappointed that the aflFair was about 
to end so smoothly — here burst out : 

** Mr. Johnson has made an intimation in regard to holding 
members of this Court personally responsible for their action. 

" Mr. Johnson. — I made no such intimation ; did not intend it. 

"The President. — Then I shall say nothing more, sir. 

" Mr. Johnson. — I had no idea of it. I said I was too old to 
feel such things, if I even would. 

"The President. — I was going to say that I hoped the day 
had passed when freemen from the North were to be bullied 
and insulted by the humbug chivalry ; and that, for my own 
part, I hold myself personally responsible for everything I do 
here. The Court will be cleared." 



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HER TRIAL AND EXECUTION. 47 

On reopening, the Judge-Advocate read a paper 
from General Harris withdrawing his objection 
because of Mr. Johnson's disclaimer. General 
Wallace remarked that it must be known to every 
member of the Commission that Mr. Senator John- 
son had taken the oath in the Senate of the United 
States. He therefore suggested that the requirement 
of his taking the oath be dispensed with. 

" The suggestion was acquiesced in, nem. con. 

" Mr, Johnson. — I appear, then, as counsel for Mrs. Sarratt." 

In reviewing, at this distance of time, the fore- 
going scene, it is scarcely possible to realize the state 
of mind of a member of a tribunal claiming at least 
to be a court of justice, that could prompt such an 
onslaught — so shocking to the universal expectation 
of dignity and decorum, not to say absolute impar- 
tiality, in a judge. 

The interpretation put upon the letter of Reverdy 
Johnson to his constituents by Generals Harris and 
Hunter was the ordinary, ill-considered, second- 
hand version circulated by blind party hostility. 
This is clearly shown by the fact that the objection 
of General Harris was not founded upon a recent 
perusal of the letter, but upon his own recollection 
of the impression it made in his own party circles 
the year before. 

When, on the next Wednesday, General Harris, 
having in the meantime looked it up, presented a 
copy of the incriminated opinion, prefacing a request 



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48 MARY E. SURRATT. . 

that it be made a part of the record by the sneering 
remark that *' the Honorable gentleman ought to be 
very thankful to me for having made an occasion 
for him to disclaim before the country any obliquity 
of intention in writing that letter;'^ and, on the 
suggestion of General Hunter, the letter was read; 
every fair minded man ought to have been convinced 
that it was open to such a malign misconstruction 
only by an unscrupulous political enemy. 

But suppose for a moment that their own hasty 
and uncharitable construction was correct, what 
right — what color of justification — did that give 
these two military Judges to make that letter of the 
year before the pretext for a sudden attack in open 
court upon such a man as Reverdy Johnson, and on 
the consecrated occasion of his appearing as counsel 
for a lady on trial for her life ? 

As to General Harris' argument that the require- 
ment of an oath gave the Commission a right to 
inquire whether the written opinions of a counsel 
chosen for a defendant, previously delivered as a 
party leader, were of such a character as to render 
him incompetent to take an oath which the Supreme 
Court of the United States and the Senate of the 
United States had recognized his competency to 
take ; why, it is charitable to suppose — and his sub- 
sequent withdrawal of his objection, notwithstanding 
he still insisted upon his construction, leads to that 
conclusion — that the zealous General did not seri- 
ously believe it himself. Certain it is, that such a 



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HER TRIAL AND EXECUTION. 49 

claim would have been scouted as preposterous in 
any law-court in the world. 

With regard to General Hunter, his ferocious 
personal defiance, hurled from the very Bench, dem- 
onstrated in a flash his preeminent unfitness for any 
function that is judicial even in a military sense. 
It is manifest that this whole attack, whether con- 
certed or not, was not made from any conscientious 
regard for the sanctity of an oath, nor from any 
sensitive fear that Reverdy Johnson, as an oath- 
breaker, might contaminate the tribunal ; but it was 
either a mere empty ebullition of party spleen, or of 
party hatred towards a distinguished democrat, or 
it was made with a deliberate design to rob a poor 
woman of any probable advantage such eminent 
counsel might procure for her. 

And whether the latter terrible suspicion be well 
founded or not, true it is that this cruel result, not- 
withstanding the withdrawal of the objection, did 
not fail of full accomplishment. 

Reverdy Johnson, though suffered to appear as 
counsel, was virtually out of the case. He was 
present only at rare intervals during the trial, and 
sent in his final argument to be read by one of his 
juniors. The Court had put its brand upon him, 
and to any subsequent effort of his it turned an 
indifferent countenance and a deaf ear. He, for- 
sooth, had " sympathized '' with the Rebellion and 
that was enough ! His appearance worked only 
harm to his client, if harm could be done to one 
4 



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50 MARY E. 8URRATT. 

whom the Court believed to have been also a sympa- 
thizer with rebellion, and who was already doomed 
to suffer in the place of her uncaptured son. 

Another incident, occurring after the testimony 
on behalf of the prisoners had begun, will illustrate 
still more clearly, if possible, the mental attitude of 
the Court. 

Among the witnesses sworn on the first day of the 
trial in secret session was one Von Steinacker, who, 
according to his own statement, had been in the 
Confederate Army, on the staff of Major-General 
Edward Johnson. He told the usual cock-and-bull 
story about seeing Booth in Virginia, in 1863, con- 
sorting with the rebel officers and concocting the 
assassination of Lincoln. At the time of his exami- 
nation he was a prisoner of war, but after he had 
given his testimony he was discharged. The counsel 
for the defense knowing nothing of the witness did 
not cross-examine him at all. But, subsequently, 
they discovered that, after having once been con- 
victed of an attempt to desert, he had at last 
succeeded in deserting the Union Army, and had 
entered the service of the Confederates ; that he had 
been convicted of theft by a court-martial ; and that 
his whole story was a fiction. Thereupon, as soon 
as possible, the counsel for Mrs. Surratt applied for 
the recall of the witness for cross-examination, so as 
to lay the basis for his contradiction and impeach- 
ment ; and they embodied the facts they were ready 
to prove in a paper which was signed by Reverdy 



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HER TRIAL AND EXECUTION. 51 

Johnson and the other counsel for Mrs. Surratt. 
This application seems to have strangely disturbed 
the Judge- Advocates and aroused the ire of the 
Court. The prosecuting officers professed to have 
no knowledge of the whereabouts of the witness; 
and General Wallace, moved from* his wonted pro- 
priety, delivered himself as follows : 

" I, for my part, object to the appearance of any such paper 
on the record, and wish to say now that I understand distinctly 
and hold in supreme contempt, such practices as this. It is 
very discreditable to the parties concerned, to the attorneys, 
and, if permitted, in my judgment will be discreditable to the 
Court." 

Mr. Clampitt, with the most obsequious deference 
to the Court, deprecated any such reflection upon the 
conduct of counsel and alluded to their duty to their 
unfortunate clients. But this humble apology was 
declared not satisfactory to the General or to the 
Court ; and the application was not only refused but 
the paper was not allowed to go upon the record. 
However, this summary method of keeping facts out 
of sight availed nothing. Mrs. Surratt's counsel had 
caused to be summoned as a witness, to contradict 
and impeach Von Steinacker, Edward Johnson, the 
very Major-General on whose staff the witness had 
sworn he had been. 

General Johnson, a distinguished officer in the 
Confederate Army, was taken prisoner in 1864 and 
had been in confinement since, as such, at Fort 
Warren. From thence he had been brought to 



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52 MARY E. SURRATT. 

attend before the Commission in obedience to a 
subpoena issued by the Court. 

On the 30th of May, he was called as a witness 
and appeared upon the stand to be sworn. As he 
stood there, in his faded uniform, bearing, doubtless, 
traces of the six ftionths' imprisonment from which 
he had come at the command of the Court, facing 
the officers of the Army he had so often encountered, 
and with his back turned upon the woman on whose 
behalf he had been summoned ; General Albion P. 
Howe deemed it his duty as an impartial judge to 
make the following attack upon him. 

After stating that it was well known that " the 
person '^ before the Court had been educate at the 
National Military Academy, and had since for many 
years held a commission in the U. S. Army, and had 
therefore taken the oath of allegiance, this gallant 
officer and upright judge proceeded : 

^'In 1861, it became my duty as an officer to fire upon a rebel 
party, of which this man was a member, and that party fired 
upon, struck down, and killed loyal men that were in the service 
of the Government. I understand that he is brought here now 
as a witness to testify before this Court, and he comes here as a 
witness with his hands red with the blood of his loyal country- 
men, shed by him or by his assistants, in violation of his solemn 
oath as a man and his faith as an officer. I submit to this Court 
that he stands in the eye of the law as an incompetent witness, 
because he is notoriously infamous. To offer as a witness a man 
who stands with this character, who has openly violated the 
obligations of his oath, and his faith as an officer, and to ad- 
minister the oath to him and present hb testimony, is but an 
insult to the Court and an outrage upon the administration of 



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HER TRIAL AND EXECUTION. 53 

justice. I move that this man, Edward Johnson, be ejected 
from the Court as an incompetent witness on account of his 
notorious infamy on the grounds I have stated." 

General Ekin welcomed the opportunity to dis- 
tinguish himself by seconding the motion and char- 
acterizing the appearance of the witness before the 
Commission, '* with such a character'' as "the height 
of impertinence!". In his haste to insult a fallen 
foe, he seems to have forgotten that the witness had 
no alternative but to come. 

The counsel for the prisoner humbly reminded 
the Court that the prosecution itself had sworn as 
its own witnesses men who had borne arms against 
the Government. The Judge-Advocate saw that 
the members of the Court had gone too far, and, 
after calling their attention to the familiar rule that 
the record of conviction in a judicial proceeding was 
the only basis of a total rejection of a witness, pro- 
ceeded to provide a channel for the relief of the 
Court by suggesting that they could discredit the 
witness upon the ground stated, although they could 
not declare him incompetent to testify. 

The assertion is confidently made that in the 
whole annals of English criminal jurisprudence, full 
as they are of instances of the grossest unfairness to 
persons on trial, no such outrage upon the adminis- 
tration of justice as the foregoing can be found. To 
find its parallel you must go to the records of the 
French Revolutionary Tribunal. What are we to 



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54 MARY E. 8URRATT. 

think of the complaint of a Union General, that "a 
rebel party "fired (first? No! but that when "it 
became his duty as an officer to fire upon a rebel 
party " the rebel party fired) back ? What in Mars' 
name did this warrior expect? Would he have had 
kinder feelings towards his brave adversary if, in 
response to his own volley, the Confederate General 
had tamely laid down his arms, or played the coward 
and run ? 

Nowadays, when the blue and the gray meet, 
charges of infamy are no longer heard, but the more 
deadly the past warfare, the greater the reciprocal 
respect. 

However, this unprovoked assault upon an unof- 
fending officer, powerless to repel it, although it did 
not result in his ejection from the Court, effectually 
disposed of General Johnson as a witness. 

In answer to the questions of counsel he calmly 
gave his testimony, which exploded both Von- 
Steinacker and his story. Judge Bingham confined 
his cross-examination to eliciting the facts, that the 
witness had graduated from West Point, served in 
the U. S. Army until 1 86 1 , resigned, and joined the 
Confederate Army. The Court paid no attention 
to his direct testimony because he had fired upon 
Union men when they had fired upon him. 

The foregoing incidents conclusively show (were 
any such demonstration necessary) that a Board of 
nine military officers, fresh from service in the field 
in a bloody civil war, with all the fierce prejudices 



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HER TRIAL AND EXECUTION. 66 

naturally bred by such a conflict hot within their 
bosoms, was the most unfit tribunal possible to ad- 
minister impartial justice to eight persons charged 
with the murder of the Commander-in-Chief of the 
Army to which every member of the Court belonged, 
committed in aid of that Rebellion which during 
four years of hard fighting they had helped to 
suppress. 



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CHAPTER III. 
The Conduct of the Trial. 

THE whole conduct of the trial emphasizes 
this conclusion. The Court, in weighing 
the evidence, adopted and acted upon the following 
proposition ; that any witness, sworn for any of 
the prisoners, who had enlisted in the Confederate 
service, or had at any time expressed secession senti- 
ments, or sympathized in any way with the South, 
was totally unworthy of credit. The Court went a 
step farther, and adopted the monstrous rule that 
j)articipation in the Rebellion was evidence of par- 
ticipation in the assassination ! This assertion now 
seems incredible, but it is fully attested by the record. 
At one stage of the trial, the Judge- Advocate asked 
a witness whether or not the prisoner Arnold had 
been in the military service of the rebels. Greneral 
Ewing, his counsel, strenuously objected to this 
question on the ground, that it tended to prove the 
prisoner guilty of another crime than the one for 
which he was on trial, and thus to prejudice him in 
the eyes of the Court. 
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HER TRIAL AND EXECUTION. 67 

Judge Holt remarked : " How kindred to each 
other are the crimes of treason against a nation and 
assassination of its chief magistrate. 

" The murder of the President * * ♦ was pre- 
eminently a political assassination. 

" When, therefore, we shall show, on the part of 
the accused, acts of intense disloyalty, bearing arms 
in the field against the Government, we show with 
him the presence of an animus towards the Govern- 
ment which relieves this accusation of much, if not 
all, of its improbability." 

He asserted that such a course of proof was con- 
stantly resorted to in criminal courts; and when 
General Ewing challenged him (as well he might) 
to produce any authorities for such a position, he 
called upon the indomitable Bingham to state them. 

The Special Judge- Advocate responded, but he 
courteously, but unmistakably, shied away from his 
colleague's position and put the competency of the 
testimony upon another ground, viz : that where the 
intent with which a thing was done is in issue, other 
acts of the prisoner which tend to prove the intent 
may be given in evidence. Here he was dealing 
with a familiar principle, and could cite any number 
of cases. He then proceeded to apply his good law. 
How ? By claiming that conspiracy to murder hav- 
ing been laid in the charge, ^* with the intent to aid 
the Rebellion/^ that was the intent in issue here, and 
therefore to prove that a man was in the Rebellion 
went to prove that intent. 



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58 MARY B. 8URRATT. 

At the request of General Ewing he read the 
all^ation which ran " in aid of the Rebellion/' and 
not " vnih interU to aid/' and the counsel pointed out 
that that was " an allegation of fact, and not of in- 
tent ; ^' but the Judge insisted that it was in eff^ct 
an allegation of intent — implied if not expressed. 

General Ewing then replied to his adversary's 
argument by showing that such an allegation was 
an unnecessary allegation. Conspiracy to murder 
and attempted murder were crimes done with intent 
to kiU; and it was a matter of no moment in plead- 
ing to allege a general intent to aid the Rebellion. 
Courts had no right to violate the laws of evidence 
because the prosecution has seen fit to violate the 
laws of pleading. 

Judge Bingham contended (and cited authorities) 
for his familiar law, and then again in applying it 
triumphantly asked : 

" When he [Arnold] entered it (i. e., the Rebel- 
lion) he entered into it to aid it, did he not?" 

"Mr. Ewing. He did not enter into that to 
assassinate the President/' 

At this, the Assistant Judge-Advocate rising to 
the decisive and culminating point of his argument 
gave utterance to the following proposition : 

''Yes: he entered into it to assassinate the President; and 
everybody else that entered into the Rebellion entered into it 
to assassinate everybody that represented the Government, that 
either followed the standard in the field, or represented its 
standard in the counsels. That is exactly why it is germane." 



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HER TBIAIi AND EXECUTION. 59 

And, thereupon, the Commission immediately 
overruled the objection. General Ewing told the 
exact truth, without a particle of rhetorical exag- 
geration, when, in the closing sentence of his argu- 
ment against the jurisdiction of the Commission, he 
exclaimed : 

" Indeed, the position taken by the learned Assist- 
ant Judge- Advocate * * ♦ goes to this — and even 
beyond it — namely, that participation in the Rebel- 
lion was participation in the assassination, and that 
the Rebellion itself formed part of the conspiracy 
for which these men are on trial here.'' 

Throughout the whole trial, the Commission took 
the law from the Judge-Advocates with the un- 
questioning docility usually manifested by a jury 
on such matters in civil courts. In truth, the main 
function of a Judge-Advocate appears to be to fur- 
nish law to the Court, as in civil courts the main 
function of the Judge is to furnish law to the jury. 
Consequently, his exposition of the law on any 
disputed point — whether relative to modes of pro- 
cedure, or to the competency of testimony, or even 
to questions of jurisdiction — instead of standing on 
the same level with the antagonistic exposition of 
counsel for the accused as an argument to be weighed 
by the Court against its opposite in the equal scales 
of decision, was at all times authoritative, like the 
opinion of a judge overruling the contention of a 
lawyer. This, surely, was bad enough for a defend- 
ant ; but, what was still more fatal to his chances 



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60 MARY E. SURRATT. 

of fair dealings this habit of domination^ acquiesced 
in by the Court on questions of law, had the effect 
(as is also seen in civil courts) of giving the same 
superior force to the expositions of questions of fact 
by the Judge- Advocate. And as this office combimed 
the functions of a prosecuting officer with the func- 
tions of a judge, there could be no restraints of law, 
custom or personal delicacy, against the enforcement, 
with all the powers of reasoning and appeal at com- 
mand, the conclusion of the Judge- Advocate upon 
the matters of fact. 

In a word, the judgment of the prosecuting officer 
— ^the retained counsel for the Government, the 
plaintiff in the action — ruled with absolute sway, 
both on the law and on the facts, the judgment of 
the Commission ; the members of which, for that 
matter, were also in the pay of the Government. 

It may, therefore, be readily anticipated with how 
little impartiality the trial was conducted. 

Mrs. Surratt (as did the rest of the accused) plead 
to the jurisdiction of the Commission on the grounds 
(1) that she was not and had not been in the military 
service of the United States, and (2) that when the 
crimes charged were committed the civil courts were 
open in Washington; both of which allegations 
were admitted and were notoriously true. What- 
ever might be the indifference with which the rights 
of the men to a constitutional trial may have been 
viewed, it was so utterly incongruous with the spirit 
of military jurisprudence and so unprecedented in 



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HER TRIAL AND EXECUTION. 61 

practice to try a woman by court-martial, that had 
Mrs. Surratt been alone before that Commission we 
venture to say those nine soldiers could not have 
brought themselves, or allowed the Judge- Advocate 
to bring them, to the overruling of her plea. As 
it was, however, the court-room was cleared of all 
save the members of the Commission and the three 
Judge-Advocates ; and after a season of what is 
called ^^ deliberation '^ (which meant the further en- 
forcement of the opinion of the prosecuting officers 
upon the point under discussion, where necessary), 
the court reopened and *Hhe Judge- Advocate an- 
nounced that the pleas ♦ * ♦ had been overruled 
by the Commission.'' 

Mrs. Surratt (as did the other prisoners) then 
asked for a separate trial ; a right guaranteed to her 
in all the civil courts of the vicinage. It was denied 
to her, without discussion, as a matter of course* 

And yet no one now can fail to recognize the 
grievous disadvantage under which this one woman 
labored, coupled in a single trial with such culprits 
as Payne who confessed his guilt, and Herold who 
was captured with Booth. 

In fact, the scheme of trial contrived by the 
Judge- Advocates on a scale comprehensive enough 
to embrace the prisoners, the Canadian exiles and 
the Confederate Cabinet, would not work on a trial 
of Mrs. Surratt alone. Of this pet plan they were 
highly proud and greatly enamoured. To it, every- 
thing — the rights of woman as well as man ; con- 



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62 MARY E. SURE ATT. 

sideratioDS of equity and of common fairness — must 
be made to give way. 

To the maintenance of this scheme in its int^rity, 
they had marshalled the witnesses, and they guided 
the Commission with a firm hand so that not a jot 
or tittle of its symmetry should be marred. 

This determined purpose is indicated by the start- 
ing-point they chose for the testimony. 

On Friday, the twelfth, the first witness was 
sworn, and his name was Richard Montgomery. 
His testimony, as well as that of the other witnesses 
sworn that day^ was taken in secret session, and no 
portion of it was allowed to reach the public until 
long after the trial. It was all directed to establish 
the complicity of the rebel agents in Canada and 
through them the complicity of Jefferson Davis and 
other officers of the " Confederacy " in the assassina- 
tion. In other words, this testimony was given 
to prove the guilt, not of the men much less of the 
woman on trial, but of the men included in the 
charge but not on trial ; and whom, as it now ap- 
pears, the United States never intended to try. 

To connect the defunct Confederacy in the person 
of its captive Chief with the murder of the Presi- 
dent would throw a halo of romantic wickedness 
about the crime, and chime in with the prevalent 
hatred towards every human being in any way con- 
nected with the Rebellion. . 

This class of testimony continued to be introduced 
every now and then during the trial — whenever 



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HER TRIAL AND EXECUTION. 63 

most convenient to the prosecution — and as often as 
it was given the court-room was cleared of specta- 
tors and the session secret ; the isolated counsel for 
Mrs. Surratt, utterly at a loss to imagine the con- 
nection of such testimony, given under such solemn 
precautions, with their own client, and knowing 
nothing whatever of the witnesses themselves, must 
have looked on in bewildered amazement, and had 
no motive for cross-examination. 

The chief witnesses who gave this carefully sup- 
pressed evidence were spies upon the rebel agents in 
Canada paid by the United States, and, ait the same 
time, spies upon the United States paid by the rebel 
agents. 

They were, of course, ready to swear to as many 
conversations with these agents, both before and after 
the assassination, in which those agents implicated 
themselves and the heads of government at Rich- 
mond in the most reckless manner, as the Judge- 
Advocates thought necessary or advisable. 

The head, parent and tutor of this band of wit- 
nesses was a man called Sanford Conover. After 
giving his testimony before the Commission, he went 
to Canada and again resumed his simulated intimacy 
with the Confederates there, passing under the name 
of James W. Wallace. An unauthorized version 
of his testimony having leaked out and appearing 
in the newspapers, he was called to account for it 
by his Canadian friends. He then made and pub- 
lished an affidavit that the person who had given 



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64 MARY E. SURRATT. 

testimony before the Commission was not himself 
but an imposter, and at the same time also published 
an offer of $500 reward for the arrest of " the in- 
famous and perjured scoundrel who secretly per- 
sonated me under name of Sanford Conover, and 
deposed to a tissue of falsehood before the military 
Commission at Washington/^ 

Being reclaimed by the government from his 
Canadian perils, he appeared again before the Court 
after the testimony had been closed and the summing 
up of all the prisoners' counsel had been completed 
(June 27th); when he testified that his affidavit 
had been extorted from him by the Confederates in 
Canada by threats of death at the point of a pistol. 
This man Conover was subsequently (in 1867) tried 
and convicted of perjury and sent to the penitentiary ; 
and with him the whole structure of perjured testi- 
mony, fabricated for reward by him and Montgomery 
and their co-spies, fell to the ground. Secretary 
Seward testified before the Judiciary Committee of 
the House of Representatives, in 1867, that, "the 
testimony of these witnesses was discredited and 
destroyed by transactions in which Sanford Conover 
appeared and the evidence of the alleged complicity 
of Jefferson Davis thereupon failed." 

But, at the period of the trial, when the passionate 
desire for vengeance was at its height, any plausible 
scoundrel, whose livelihood depended on the rewards 
for wholesale perjury, and who was sure to be at- 
tracted to Washington by the scent of his favorite 



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HER TRIAL AND EXECfdTION. 66 

game^ was thrice welcome to the Bureau of Mili- 
tary Justice. Any story, no matter how absurd 
or incredible, provided it brought Jefferson Davis 
within conjectural fore-knowledge of the assassi- 
nation, was greedily swallowed, and, moreover, was 
rewarded with money and employment. These 
harpies flocked, like buzzards, around the doors of 
the old Penitentiary, and all — black and white, 
from Eichmond, from Washington and from Mont- 
real — were eager, for a consideration, to swear that 
Davis and Benjamin were the instigators of Booth 
and Surratt. And such testimony as it was ! For 
the most part the sheerest hearsay ! The private 
impressions of the witness ! In one instance, his 
recollection of the contents of a letter the witness 
had heard read or talked about, the signature of 
which, although he did not see it himself, he heard 
was the signature of Jefferson Davis ! ! Testimony 
wholly inadmissible under the most elementary rules 
of evidence, but swept before the Commission in 
the absence of counsel for the parties implicated and 
under the immunity of a secret session. 

For example : a blind man, who had been, at an 
undated period during the war, a hanger-on around 
the camp at Eichmond, being asked whether he had 
heard any conversations among the rebel officers in 
r^ard to the contemplated assassination, answered : 

" In a general way, I have heard sums offered, to be paid 
with a Confederate sum, for any person or persons to go North 
and assassinate the President.'' 

6 



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66 MARY E. SURRATT. 

Being pressed to name the amount and by what 
officers, he answered : 

" At this moment, I cannot tell you the particular names of 
shoulder-straps, <&c. 

" Q. — Do you remember any occasion — ^some dinner occasion ? 

" A. — I can tell you this : I heard a citizen make the remark 
once, that he would give from his private purse $10,000, in 
addition to the Confederate amount, to have the President assas- 
sinated ; to bring him to Richmond dead or alive, for proof. 

" Q. — I understood you to say that it was a subject of general 
conversation among the rebel officers ? 

" A. — It was. The rebel officers, as they would be sitting 
around their tent doors, would be conversing on such a subject 
a great deal. They would be saying they would like to see his 
head brought there, dead or alive, and they should think it 
could be done ; and I have heard such things stated as that 
they had certain persons undertaking it.'* 

In the introduction of evidence against Mrs. 
Surratt, as well as the others on trial, the Judge- 
Advocates allowed themselves the most unlimited 
range. 

Narrations of all sorts of events connected with 
the progress of the War — historical, problematical 
or fabulous — ^having no relevancy to the particular 
charge against her, or them, but deadly in their 
tendency to steel the minds of the Court against her, 
were admitted without scruple or hesitation. 

Seven soldiers who had been prisoners of war at 
Libby Prison, Belle Island or Andersonville were 
called and testified, in all its ghastly details, to the 
terrible treatment they and their fellow-prisoners 



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HER TRIAL AND EXECUTION. 67 

had undergone. Three witnesses were sworn to 
prove that the rebel government buried a torpedo 
under the centre of Libby Prison, to be fired if the 
U. S. troops entered Richmond. Letters found in 
the Richmond Archives were read, offering to rid 
the world of the Confederacy's deadliest enemies, 
and projecting wholesale destruction to property in 
the North. Testimony was allowed to be given of 
the burning of U. S. transports and bridges by men 
in the Confederate service ; of the raids from Canada 
into the United States ; of the alleged plot in all its 
horrible features to introduce the yellow-fever into 
Northern cities by infected clothing, testified to by 
the villain who swore he did it for money. It is 
scarcely to be credited, yet it is a fact, that the con- 
fession of Robert Kennedy, hung in March previous 
for attempting to burn the City of New York, was 
read in evidence ; as was also a letter from a Con- 
federate soldier, detailing the blowing up of vessels 
by a torpedo and the killing of Union men at City 
Point, indorsed by a recommendation of the operator 
to favor. 

On June 27th, after the testimony had been closed 
and the summing up of counsel for the defense 
ended, the case was reopened and there was intro- 
duced an advertisement clipped from the "Selma 
Dispatch" of December 1st, 1864, wherein some 
anonymous lunatic offered, if furnished $1,000,000, 
to cause the lives of Lincoln, Seward and Johnson 
to be taken before the first of March. 



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68 MARY E. SURRATT. 

The prosecution closed its direct testimony on 
May 25th, reserving the right (of which we have 
seen they availed themselves from time to time) 
thereafter to call further witnesses on the character 
of the Rebellion and the complicity of its leaders in 
the assassination. 

Out of about one hundred and fifty witnesses 
sixty-six gave testimony of that kind. Of the re- 
maining eighty-four about fifty testified to the cir- 
cumstances attending the assassination, the pursuit 
and capture of Booth and Herold, and the terrific 
assault of Payne on William H. Seward and his 
household. Of the remaining thirty-four there were 
nine whose testimony was directed to the incrimina- 
tion of Mrs. Surratt. 

The important witnesses against her were three 
soldiers testifying under the eye of their superior 
officers as to her non-recognition of Payne, and two 
informers who had turned staters evidence to save 
their own necks, who connected her with Booth. 

The witnesses for the defense, for the most part, 
were treated by the Special Judge-Advocate as 
virtual accomplices of the accused ; and, as soon as, 
by a searching cross-examination, he had extorted 
from them a reluctant admission of the slightest 
sympathy with the South (as in almost every case 
he was able to do), he swept them aside as impeached, 
and their testimony as unworthy of a mementos con- 
sideration. A former slave, who announced himself 
or herself as ready to give evidence against his or 



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HER TRIAL AND EXECUTION. 69 

her former master, was a delicious morsel for the 
Bureau of Military Justice ; and several such were 
sworn for the prosecution. While, on the other 
hand, nothing so exasperated the loyal Bingham or 
so astonished the Court as the apparition of an old 
slave-woman, summoned by the defense, eagerly en- 
deavoring to exculpate her former master. 

Several priests testified as to the good character of 
Mrs. Surratt as a lady and a christian, but the effect 
of their testimony was immediately demolished in 
the eyes of the Court, when, on cross-examination, 
although they refused to substantiate what the 
Judge- Advocate called "her notorious intense dis- 
loyalty,^^ they could not remember that. they had 
ever heard her " utter one loyal sentiment." 



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CHAPTER IV. 
Arguments for the Defense. 

THE testimony for the several defenses of the 
eight accused closed on the 7th of June, and 
the testimony in rebuttal ended on the 14th, with the 
evidence of the physicians on the sanity of Payne. 

Thereupon, General Ewing endeavored to extract 
from the Judge- Advocate an answer to the two fol- 
lowing questions : First. — Whether his clients were 
on trial for but one crime, viz. : Conspiracy, or four 
crimes, viz. : Conspiracy, Murder, Attempt at mur- 
der. Lying in wait ? and 

Second. — By what statute or code of laws the 
crimes of "traitorously" murdering, or ''traitor- 
ously" assaulting with intent to kill, or "traitor- 
ously " lying in wait, were defined, and what was 
the punishment affixed ? 

The Judge- Advocate's reply to the first question 
was, in substance, that all the accused were charged 
with conspiring to assassinate the President and the 
other members of the Government named, and fur- 
ther, with having executed that conspiracy so far as 
the assassination of the President and the assault on 
the Secretary of State were concerned, and " to have 
70 



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HER TRIAL AND EXECUTION. 71 

attempted its execution so far as concerns the lying 
in wait and other matters/^ 

Assistant Judge- Advocate Bingham added : 

"The act of any one of the parties to a oonspiracy in its 
execution is the act of every party to that conspiracy; and 
therefore the charge and specification that the President was 
murdered in pursuance of it by the hand of Booth, is a direct 
and unequivocal charge that he was murdered by every one of 
the parties to this conspiracy, naming the defendants by name. 

" Mr. Ewing.— I understand * * * but I renew my inquiry, 
whether these persons are charged with the crime of conspiracy 
alone, and that these acts of murdering, assaulting, and lying 
in wait, were merely acts done in execution of that conspiracy. 

" Mr. Bingham (interrupting). — And not crimes ? 

** Mr. Ewing.— Or whether they are charged with four dis- 
tinct crimes in this one charge ? 

**Mr. Bingham. — * Where parties are indicted for a con- 
spiracy, and the execution thereof, it is but one crime at the 
common law. And that as many * * * overt acts in the exe- 
cution of the conspiracy as they are guilty of, may be laid in 
the same count.' 

** Mr. Ewing. — It is then, I understand, one crime with which 
they are charged. 

" Mr. Bingham. — One crime all round, with various parts 
performed. 

" Mr. Ewing. — The crime of conspiracy. 

" Mr. Bingham. — It is the crime of murder as well. It is 
not simply conspiring but executing the conspiracy treasonably 
and in aid of the Rebellion. 

" Mr. Ewing. — I should like an answer to my question, if it 
is to be given: How many crimes are my clients charged with 
and being tried for? I cannot tell. 

" Mr. Bingham. — We have told you, it is all one transaction." 

General Ewing, not being able to get an answer 
intelligible to himself to the first question^ then 



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72 MARY E. SURRATT. 

respectfully asked an answer to the second: By 
what code or statute the crime was defined and the 
punishment provided ? 

" The Judge-Advocate. — I think the common law of war will 
reach that case. This is a crime which has been committed in 
the midst of a great civil war, in the capital of the country, in 
the camp of the Commander-in-Chief of our armies, and if the 
common law of war cannot be enforced against criminals of that 
character, then I think such a code is in vain in the world. 

"Mr. Ewing. — Do you base it, then, only on the law of 
"nations ? 

" The Judge-Advocate. — ^The common law of war. 

" Mr. Ewing. — Is that all the answer to the question ? 

" The Judge- Advocate. — It is the one I regard as perfectly 
appropriate to give. 

** Mr. Ewing. — I am as much in the dark now as to that as I 
was in reference to the other inquiry." 

It is significant that the ready Special Judge- 
Advocate rendered* no aid to his colleague on the 
latter branch of the inquiry. 

According to the theory of the prosecution, then, 
Mary E. Surratt was tried, as a co-conspirator of 
Jefferson Davis and seven of his agents, of the seven 
men tried with her, and of Booth and her own son, 
for the crime of " traitorous conspiracy " to murder 
the President, Vice-President, Secretary of State and 
Lieutenant-General, of the United States ; and for 
the following crimes committed in pursuance thereof: 

1. Assassination of the President, with Booth, 

2. Attempt to murder the Secretary of State, his 
two sons and two attendants (five crimes instead of 
one), with Payne. 



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HER TRIAL AND EXECUTION. 73 

7. Lying in wait to kill the Vice-President, with 
Atzerodt. 

8. Lying in wait to kill the Lieiitenant-General, 
with O'Laughlin. 

Eight separate species of crimes, beside the generic 
one of " traitorous conspiracy." And she, a citizen, 
a non-combatant, a woman, was tried on this nine- 
fold, omnibus charge, jointly with seven men, under 
" the common law of war " ! 

On the 16th of June (Friday), Mr. Clampitt read 
the argument of Reverdy Johnson against the juris- 
diction of the Commission — one of the most cogent 
and convincing ever delivered in a court of justice. 

The Supreme Court of the United States, subse- 
quently (December, 1866), in deciding the Milligan 
case, did but little more than reiterate the proposi- 
tions maintained by this great lawyer. 

He opened his address by reminding the Court 
that the question of their jurisdiction to try and 
sentence the accused was for the Court alone to de- 
cide, and that no mandate of the President, if in fact 
and in law the Constitution did not tolerate such 
tribunals in such cases, could protect any member 
of the Commission from the consequences of his 
ill^al acts. He then advanced and proved the fol- 
lowing propositions : that none but military offenses 
are subject to the jurisdiction of military courts, and 
that the offenders when they commit such offenses 
must be subject to military jurisdiction — in other 



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74 MARY E. SURRATT. 

words, must belong to the array or navy ; that the 
President himself had no right to constitute military 
courts of his own motion, but that such power must 
first be exercised by Congress under the constitu- 
tional grant to that body to make rules for the 
government and regulation of the land and naval 
forces ; that, by the fifth and sixth amendments of 
the constitution, every person, except those belong- 
ing to the land or naval forces or to the militia in 
active service in time of war, and, being such, 
committing a military or naval crime, is guaranteed 
an investigation by a grand jury as a preliminary 
to trial, and a speedy and public trial by an im- 
partial jury. He then took up and examined the 
grounds on which the jurisdiction of the Commission 
was sought to be maintained. Calling the Courtis 
attention to the constitutional provision that, if the 
institution of such Commission was an incident to 
the war power, that power was lodged exclusively in 
Congress and not at all in the President, and, there- 
fore. Congress only could authorize such tribunals, 
he showed that, neither by the articles of war nor by 
the two acts, relied on, passed during the Rebellion, 
had Congress ever authorized any such tribunal; 
and that a military commission like the present and 
under present circumstances "is not to be found 
sanctioned, or the most remotely recognized, or even 
alluded to, by any writer on military law in England 
or the United States, or in any legislation of either 
country." 



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HER TRIAL AND EXECUTION. 76 

And, in this connection, he pronounced the sugges- 
tion that the civil courts and juries of the District 
of Columbia could not safely be relied upon for the 
trial of these cases, "an unjust reflection upon the 
judges, upon the people, upon the marshal, an ap- 
pointee of the President, by whom the juries were 
summoned, and upon our civil institutions them- 
selves ; " and he closed his remarks upon this branch 
of his subject by saying that the foregoing suggestion, 

" upon another ground, is equally without force. It rests on 
the idea that the guilty only are ever brought to trial ; that 
the only object of the Constitution and laws in this regard is to 
afford the means to establish alleged guilt; that accusation, 
however made, is to be esteemed prima facie evidence of guilt, 
and that the Executive should be armed, without other restric- 
tion than his own discretion, with all the appliances deemed by 
him necessary to make the presumption from such evidence con- 
clusive. Never was there a more dangerous theory. The peril 
to the citizen from a prosecution so conducted, as illustrated in 
all history, is so great that the very elementary principles of 
constitutional liberty, the spirit and letter of the Constitution 
itself repudiated it." 

After depicting the peril to the rights of the citi- 
zen of confiding to the option of the Executive the 
power of substituting a secret for a public tribunal 
for the trial of offenses, he established the following 
propositions: That the creation of a Court is an 
exclusively legislative function ; that constitutional 
guarantees are designed for times of war as well as 
times of peace ; that the power to suspend the writ 
of Habeas Corpus carries with it only the temporary 



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76 MARY E. SURRATT. 

suspension of the right to inquire into the cause of 
the arrest, and does not extend in any way over the 
other rights of the accused. The distinguished ad- 
vocate then further maintained that, conceding the 
articles of war provide for a military court like this, 
yet the offense charged in the present case being 
nothing less than treason could not under the pro- 
vision of the constitution, regulating the trial of 
treason, be tried by a military commission; and, 
also, that under the articles of war persons who were 
not and never had been in the army were not subject 
to military law. And, in order to illustrate this 
branch of his argument as forcibly as possible, 
passing in review the guaranteed and historic rights 
of accused persons on trials before civil courts, he 
arrayed the open and flagrant violations of these 
rights which had been permitted by the Commis- 
sion on the present trial : First, in the character of 
the pleadings, which for indefiniteness and duplicity 
would not have been tolerated by any civil tribunal. 
Second, as to the rules of evidence, which, according 
to the Judge- Advocate, allowed proof of separate 
and distinct oflfenses alleged to have been committed, 
not only by the parties on trial, but by other persons, 
and which the accused, however innocent, could not 
be supposed able to meet. Third, he quoted Lord 
Holt to show that in a civil court "these parties 
could not have been legally fettered during their 
trial.^^ Referring to the row of miserable beings 
weighed down with shackles as they had entered 



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HER TRIAL AND EXECUTION. 77 

the court-room, as they confronted their epauletted 
judges, and as they departed to their solitary cells, 
day by day, for more than a month, he repeated the 
words of the great jurist, then 200 years old : " 

** Hearing the clanking of chains, thoagh no complaint was 
made to him, he said, ^I should like to know why the prisoner 
is brought in ironed. Let them be instantly knocked off. 
When prisoners are tried they should stand at their ease.* " 

Then, characterizing the claim, that martial law 
prevailing in the District of Columbia therefore 
warranted the Commission, as alike indefensible and 
dangerous, and at the same time irrelevant because 
martial law had never been proclaimed and the civil 
courts were in the full and undisturbed exercise of 
all their functions, the counsel drove this point home 
as follows : 

** We learn, and the fact is doubtless true, that one of the 
parties, the very chief of the alleged conspiracy, has been in- 
dicted, and is about to be tried before one of those courts. If 
he, the alleged head and front of the conspiracy, is to be and 
can be so tried, upon what ground of right, of fairness or of 
policy, can the parties who are charged to have been his mere 
instniments be deprived of the same mode of trial ?'' 

At the close of his speech he recurs to the warning 
that the President's command can furnish no justi- 
fication to the members of the tribunal. If their 
function were only to act as aides to the President to 
enable him to discharge his prerogative of punish- 
ment, and is to that extent legal, then it is only so 



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78 MARY E. SURRATT. 

because the President might have dispensed with the 
Court altogether, and ordered the punishment of the 
culprits without any formal trial. 

No, he warned them, in the most courtly and 
courteous manner, they could not shield themselves 
behind the President. 

" Responsibility to personal danger can never alarm soldiers 
who have faced * * * death on the battle-field. But there is 
a responsibility that every gentleman, be he soldier or citizen, 
will constantly hold before him and make him ponder — re- 
sponsibility to the constitution and laws of his country and an 
intelligent public opinion — and prevent his doing anything 
knowingly that can justly subject him to the censure of either. 
I have said that your responsibility is great. If the C!ommi8sion 
under which you act is void and confers no authority, whatever 
you may do may involve the most serious personal liability." 

He then cited the case of Governor Wall, hung in 
London in 1802 for murder — a soldier, under his 
government in the island of Goree, having been 
whipped to death by sentence of a regimental court- 
martial, twenty years before. 

" In that instance want of jurisdiction in the court-martial 
was held to be fatal to its judgment as a defense for the death 
that ensued under it. In this, if the Commission has no juris- 
diction, its judgment for the same reason will be of no avail, 
either to Judges, Secretary of War, or President, if either Bhall 
be called to a responsibility for what may he done under it." 

The learned counsel then added : 

" The opinion I have endeavored to maintain is believed to 
be the almost unanimous opinion of the profession and certainly 
is of every judge or court who has expressed any." 



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HER TRIAL AND EXECUTION. 79 

And he cited the then recent charge of Judge 
Bond to the grand jury at Baltimore, in which the 
Judge declared in reference to such military com- 
missions as the present, that, 

"Sach persons exercising sach anlawful jarisdiction are 
liable to indictment by you as well as responsible in civil 
actions to the parties." 

And he quoted to the Court that portion of the 
charge of Judge Rufus W. Peckham to a gmnd 
jury in New York City, delivered during the prog- 
ress of this very trial, wherein the right of a military 
commission to try was denied : 

** A great crime has lately been committed that has shocked 
the civilized world. Every right-minded man desires the 
punishment of the criminals, but he desires that punishment 
to be administered according to law, and through the judicial 
tribunals of the country. No star-chamber court, no secret 
inquisition, in this nineteenth century, can ever be made ac- 
ceptable to the American mind. 

******** 

" Grave doubts, to say the least, exist in the minds of intel- 
ligent men, as to the constitutional right of the Military Com- 
mission at Washington to sit in judgment upon the prisoners 
now on trial for their lives before that tribunal. Thoughtful 
men feel aggrieved that such a commission should be established 
in this free country, when the war is over, and when the com- 
mon law courts are open and accessible to administer justice 
according to law, without fear or favor. * * * 

"The unanimity with which the leading press of our land 
has condemned this mode of trial ought to be gratifying to 
every patriot." 



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80 MARY E. BtTRRATT. 

On the twenty -third, General Ewing, too, assailed 
the jurisdiction of the Court in a short but powerful 
speech from which are taken the following extracts : 

''The jurisdiction of the CommissioD has to be sought dehon 
the Constitution, and against its express prohibition. It is, 
therefore, at least of doubtful validity. If that jurisdiction do 
not exist; if the doubt be resolved against it by our judicial 
tribunals, when the law shall again speak, the form of trial by 
this unauthorized Commission cannot be pleaded in justification 
of the seizure of property or the arrest of persons, much less 
the infliction of the death penalty. In that event, however 
fully the recorded evidence may sustain your findings, however 
moderate may seem your sentences, however favorable to the 
accused your rulings on the evidence, your sentence will be held 
in law no better than the rulings of Judge Lynch's courts in the 
administration of lynch law. 

"Our judicial tribunals, at some future day * * * will be 
again in the full exercise of their constitutional powers, and 
may think, as a large proportion of the legal profession think 
now, that your jurisdiction in these cases is an unwarranted 
assumption ; and they may treat the judgment which you pro- 
nounce and the sentence you cause to be executed, as your own 
unauthorized acts. 

" Conviction may be easier and more certain in this Military 
Commission, than in our constitutional courts. Inexperienced 
as most of you are in judicial investigation, you can admit evi- 
dence which the courts would reject, and reject what they would 
admit, and you may convict and sentence, on evidence which 
those courts would hold to be wholly insufficient Means, too, 
may be resorted to by detectives, acting under promise or hope 
of reward, and operating on the fears or the cupidity of wit- 
nesses, to obtain and introduce evidence, which cannot be 
detected and exposed in this military trial, but could be readily 
in the free, but guarded, course of investigation before our 
regular judicial tribunals. The Judge- Advocate, with whom 
chiefly rests the fate of these citizens, is learned in the law, 



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HER TRIAL AND EXECUTION. 81 

but from his position he can not be an impartial judge, anlefis 
he be more than a man. He is the prosecutor in the most ex- 
tended sense of the word. As in duty bound, before this court 
was called, he received the reports of detectives, pre-examined 
the witnesses, prepared and officially signed the charges, and, 
as principal counsel for the Government, controlled on the trial 
the presentation, admission and rejection of evidence. In our 
courts of law, a lawyer who has heard his client's story, if 
transferred from the bar to the bench, may not sit in the trial 
of the cause, lest the ermine be sullied through the partiality 
of counsel. This is no mere theoretical objection — ^for the 
union of prosecutor and judge works practical injustice to the 
accused. The Judge- Advocate controls the admission and re- 
jection of evidence — knows what will aid and what will injure 
the case of the prosecution, and inclines favorably to the one 
and unfavorably to the other. The defense is met with a bias 
of feeling and opinion on the part of the judge who controls 
the proceedings of the Court, and on whom, in great measure, 
the fate of the accused depends, which morals and law alike 
reject." 

Whatsoever else may be pleaded in excuse or pal- 
liation of the acts of the Commission^ it can never 
be said that its members were driven on by an over- 
powering sense of their duty as soldiers, in blind 
ignorance of the Constitution and the law. Each 
and every officer was made fully aware of his awful 
responsibility and apprized of the precarious footing 
of his authority. 



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CHAPTER V. 
Charge op Judge Bingham. 

PROM the sixteenth to the twenty-seventh of 
June the time was consumed by the summing 
up of the several counsel for the prisoners on the 
facts disclosed by the evidence ; and on the last men- 
tioned day and the succeeding one, Special Judge- 
Advocate Bingham delivered his address in answer 
to all the foregoing pleas, both as to the jurisdiction 
of the Court and also as to the merits of the case. 

This long, carefully prepared and yet impassioned 
speech may be fairly considered as embodying the 
very proof-charge of the prosecution. Indeed, under 
the rules of military procedure, it occupies the place 
and performs the functions of the judge^s charge in 
the common-law courts. As such, it deserves a 
closer analysis and a more extended examination 
than can be given to it here. The briefest and most 
cursory review, however, will suffice to show its tone 
and temper. 

After a solemn asseveration of his desire to be 

just to the accused, and a warning to the Court that 

*^a wrongful and illegal conviction or a wrongful and 

illegal acquittal * * * would impair somewhat the 

82 



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HER TBIAL AKD EXECUTION. 83 

security of every man^s life and shake the stability 
of the Republic," the learned advocate specifically 
declares, that the charge " is not simply the crime 
of murdering a human being" but a "combination 
of atrocities," committed as charged upon the record, 
" in pursuance of a treasonable conspiracy entered 
into by the accused with one John Wilkes Booth, 
and John H. Surratt, upon the instigation of Jef- 
ferson Davis, Jacob Thompson, George N. Sanders 
and others, with intent thereby to aid the existing 
rebellion and subvert the constitution and laws of 
the United States." 

A denunciation of the Rebellion as " itself simply 
a criminal conspiracy and a gigantic assassination " ; 
the following glowing period — " Now that their bat- 
talions of treason are broken and flying before the 
victorious legions of the republic, the chief traitors 
in this great crime against your government secretly 
conspire with their hired confederates to achieve by 
assassination what they in vain attempt by wager of 
battle"; — and the unequivocal announcement that 
" it is for this secret conspiracy in the interest of the 
rebellion, formed at the instigation of the chief in 
that rebellion, and in pursuance of which the acts 
charged and specified are alleged to have been done, 
and with the intent laid, that the accused are upon 
trial" : finish the exordium. 

The speaker then tackles the question of jurisdic- 
tion, which, he remarks by the way, " as the Court 
has already overruled the plea," he would pass over 



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84 MARY E. SURRATT. 

in silence, " but for the fact that a grave and elabo- 
rate argument has been made by the counsel for the 
accused, not only to show want of jurisdiction, but 
to arraign the President of the United States before 
the country and the world as a usurper of power 
over the lives and the liberties of the prisoners." 

He dexterously evades the force of the argument 
that the civil courts of the District were open when 
the crime was committed, by asserting that " they 
were only open * * * and are only open at this hour 
by force of the bayonet ; " and he claims that the 
President acting by a military force had as much 
right to try the co-conspirators of Booth, as to pur- 
sue, capture and kill the chief criminal himself; 
which, if true, leads us into the maintenance of the 
monstrous doctrine that the President by a summary 
order might have strung up the culprits without the 
interposition of any court. He then enters upon an 
argument to show that the Commission, from the 
very nature of its organization, cannot decide that 
it is no Court, and he ridicules the idea that these 
nine subordinate military officers could question the 
authority of their Commander-in-Chief. 

In this connection, he gently rebukes Mr. Ewing 
for his bold statement to the Commission : " You, 
gentlemen, are no court under the Constitution ! " 
reminding him that " not many months since he was 
a general in the service of the country and as such 
in his department in the West proclaimed and en- 
forced martial law ; " and asks him whether he is 



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HER TRIAL AND EXECUTION. 88 

"quite sure he will Dot have to answer for more of 
these alleged violations of the rights of citizens than 
any of the members of the Court ? ^^ 

He professes his high regard for General Ewing 
as a military commander who has made a *^ liberal 
exercise of this power/^ and facetiously wishes " to 
know whether he proposes, by his proclamation 
of the personal responsibility awaiting all such 
usurptions/^ that he himself shall be " drawn and 
quartered/^ 

After disposing of Greneral Ewing in this gin- 
gerly manner, he compensates himself for the slight 
restraint by pouring the vials of his unstinted 
wrath upon Reverdy Johnson ; representing him as 
" denouncing the murdered President and his suc- 
cessor/^ as making " a political harangue, a partisan 
speech against his government and country, thereby 
swelling the cry of the armed legions of sedition and 
rebellion that but yesterday shook the heavens/' 
He characterizes one of the most temperate and 
dignified of arguments as "a plea in behalf of an 
expiring and "shattered rebellion,^' and " a fit subject 
for public condemnation/' 

He calls upon the people to note, 

''That while the learned gentleman [Mr. Johnson], as a 
volunteer, without pay, thus condemns as a usurpation the 
means employed so efTectually to suppress this gigantic insur- 
rection, the New York NewSj whose proprietor, Benjamin Wood, 
is shown by the testimony upon your record to have received 
from the agents of the rebellion $25,000, rushes into the lists to 
champion the cause of the rebellion, its aiders and abettors, by 



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86 MARY E. SURRATT. 

following to the letter hie colleague [Mr. Johnson], and with 
greater plainness of speech, and a fervor intensified doubtless 
by the $25,000 received, and the hope of more, denounces tlie 
Court as a usurpation and threatens the members with the con- 
sequences." 

And he interrupts his tirade against one of the 
greatest men this country has produced to burst forth 
into the following grandiloquent apostrophe : 

*' Youngest born of the Nations ! Is she not immortal by all 
the dread memories of the past — by that sublime and voluntary 
sacrifice of the present, in which the bravest and noblest of her 
sons have laid down their lives that she might live, giving their 
serene brows to the dust of the grave, and lifting their hands 
for the last time amidst the consuming fires of battle I " 

After a brief defense of the secret sessions of the 
Commission, the learned advocate enters upon his 
circumstantial reply to the argument of Mr. Johnson, 
into which it is not worth while to follow him, as the 
main points of his contention have been rendered 
obsolete by the Supreme Court of the United States. 

Suffice it to say, he holds that the President of the 
United States has the power, of his own motion, to 
declare martial law in time of war, over the whole 
United States, whether the States are within the 
theatre of the war or not ; and that President Li|i- 
coln exercised this power by his proclamation of 
September, 1862, by virtue of which martial law 
prevailed over the whole North, including, of course, 
the District of Columbia, on the day of the assas- 
sination ; and, farther, that certain subsequent acts 



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HER TRIAL AND EXECUTION. 87 

of Congress, though not in express terms yet by fair 
implication, had ratified the proclamation. 

He contends, in consequence, that " nothing can 
be clearer than that citizen and soldier alike, in time 
of civil or foreign war, are triable by military tri- 
bunals for all offences of which they may be guilty, 
in the interest of, or in concert with the enemy ; '* 
and that ".these provisions, therefore, of your Con- 
stitution for indictment and trial by jury in civil 
courts of all crimes are * * * silent and inoperative 
in time of war when the public safety requires it.^' 

Listen to this judicial expounder of constitutional 
law ! 

" Here is a conspiracy organized and prosecuted by armed 
traitors and hired assassins, receiving the moral support of 
thousands in every State and district, who pronounced the war 
for the Union a failure, and your now murdered but immortal 
Commander-in-Chief a tyrant. 

" It is in evidence that Davis, Thompson, and others * * * 
agreed and conspired with others to poison the fountains of 
water which supply your commercial metropolis, and thereby 
murder its inhabitants ; to secretly deposit in the habitation of 
the people and in the ships in your harbor inflammable mate- 
rials, and thereby destroy them by fire ; to murder by the slow 
and consuming torture of famine your soldiers, captives in their 
hands ; to import pestilence in infected clothes to be distributed 
in your capital and camps, and thereby murder the surviving 
heroes and defenders of the Republic. 

** I claim that the Constitution itself * » * by express terms, 
has declared whatever is necessary to make the prosecution of 
the war successful, may be done, and ought to be done, and is 
therefore constitutionally lawfuL 

" Who will dare to say that in the time of civil war no person 
shall be deprived of life, liberty and property, without due 



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88 MARY E. SUBRATT. 

process of law? This is a provision of your CoDstitation, than 
which there is none more just and sacred in it; it is, however, 
only the law of peace, not of war. 

" In time of war the civil tribunals of justice are wholly or 
partially silent, as the public safety may require; * * * the 
limitations and provisions of the Constitution in favor of life, 
liberty and property are therefore wholly or partially sus- 
pended." 

He makes allusion to the recent re-relection of 
President Lincoln, as ratifying any doubtful exercise 
of power by him : 

" The voice of the people, thus solemnly proclaimed, by the 
omnipotence of the ballot * * * ought to be accepted, and will 
be accepted, 1 trust, by all just men, as the voice of God." 

He concludes his plea in favor of the jurisdiction 
of the Commission, by declaring that for what he 
had uttered in its favor " he will neither ask pardon 
nor offer apology ,'' and by quoting Lord Brougham's 
speech in defence of a bill before the House of Lords 
empowering the Viceroy of Ireland to apprehend 
and detain all Irishmen suspect of conspiracy. 

The Special Judge- Advocate then proceeds to sum 
up the evidence, in doing which he leaves nothing 
to the free agency of the Court. He, first, by a 
review of the testimony of the Montgomeries and 
Conovers, proves to his own and, presumably, to 
the Court's satisfaction, that "Davis, Thompson, 
Cleary, Tucker, Clay, Young, Harper, Booth and 
John H. Surratt did combine and conspire together 
in Canada to kill and murder Abraham Lincoln, 



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HEB TRIAL AND EXECUTION. 89 

Andrew Johnson, Wm. H. Seward and Ulysses 
S. Grant." 

" Surely no word further need be spoken to show that John 
Wilkes Booth was in this conspiracy ; that John H. Snrratt was 
in this conspiracy ; and that Jefferson Davis, and his several 
agents named, in Canada, were in this conspiracy. 

" Whatever may be the conviction of others, my own con- 
viction is that Jefferson Davis is as clearly proven gailty of this 
conspiracy as is John Wilkes Booth, by whose hand Jefferson 
Davis inflicted the mortal wound upon Abraham Lincoln/' 

After such utterances as these, it is hardly neces- 
sary to state that this impartial Judge declares every 
single person on trial, as well as John H. Surratt, 
guilty beyond the shadow of a doubt. 

" That John H. Surratt, George A. Atzerodt, Mary E. Surratt, 
David E. Herold, and Louis Payne entered into this conspiracy 
with Booth, is so very clear upon the testimony, that little 
time need be occupied in bringing again before the Court the 
evidence which establishes it. 

''It is almost imposing upon the patience of the Court to 
consume time in demonstrating the fact, which none conversant 
with the testimony of this case can for a moment doubt, that 
John H. Surratt and Mary E. Surratt were as surely in the 
conspiracy to murder the President as was John Wilkes Booth 
himself." 

He lets out the secret that the mother is on trial 
as a substitute for her son, whom the Secretary of 
War and the Bureau of Military Justice had failed 
to capture, by saying : 

'' Nothing but his conscious coward guilt could possibly in- 
duce him to absent himself from his mother, as he does, upon 
her trial." 



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90 MARY E. SURKATT. 

After having reiterated over and over again, with 
all the authority of his office, what he had for hours 
endeavoured to enforce by all the resources of his 
intellect, that the guilt " of all these parties, both 
present and absent ^' is proved " beyond any doubt 
whatever," and " is no longer an open question ; " 
he closes by formally, and with a very cheap show 
of magnanimity, leaving " the decision of this dread 



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CHAPTER VI. 

The Verdict, Sentence and Petition. 

WITH the loud and repeated denunciations of 
this elaborate and vindictive harangue, full 
as it was of rhetorical appeals to the members of the 
Commission to avenge the murder of " their beloved 
Commander-in-Chief," and of repeated and most 
emphatic assurances of the undoubted guilt of each 
and every one of the prisoners, as well as of all their 
alleged accomplices, still ringing in the ear of the 
Court ; the room is for the last time cleared of spec- 
tators, counsel for the prisoners and reporters ; the 
mournful procession of the accused marches for the 
last time from the dock to their solitary cells, their 
fetters clanking as they go; and the Commission 
meets to deliberate upon its verdict. But who 
remains in the room, meets with the Court and 
participates in its secret and solemn deliberations? 
Who but Colonel Burnett, the officer who had so 
zealously conducted the preliminary examinations 
of the witnesses and marshalled the evidence for the 
prosecution? Who but Recorder Joseph Holt, the 
head of the Bureau of Military Justice, the left hand 
of Stanton as Baker was his right? Who but John 

91 



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92 MARY E. SURRATT. 

A. Bingham^ the Special Judge- Advocate, who had 
80 mercilessly conducted the trial, assailing counsel, 
browbeating witnesses for the defense, declaring that 
all participants in the rebellion were virtually guilty 
of the assassination, and who had just closed his long 
speech, in which he had done his utmost to stir up the 
Commission to the highest pitch of loyalty, unrea- 
soning passion and insatiable desire for vengeance ? 

Where can we look in the history of the world 
for a parallel to such a spectacle? A woman of re- 
finement and education, thrown together in one mass 
with seven men, to be tried by nine soldiers, for the 
crime of conspiring with Jefferson Davis, the arch- 
enemy of every member of the tribunal, to kill, and 
killing, the beloved Commander-in-Chief of every 
member of the tribunal ; three experienced criminal 
lawyers eagerly engaging in the task of proving her 
guilty; pursuing it for days and weeks with the 
unrelenting vigor of sleuth-hounds ; winding lip by 
reiterating in the most solemn manner their over- 
whelming conviction of her guilt ; and then all three 
being closeted with the Court to take part in making 
up the doom of death ! 

And here let us pause to consider one feature of 
the trial and of the summing up of Judge Bingham, 
which has not yet been noticed because it deserves 
special and prominent remark. 

It appeared from the testimony on the part of the 
prosecution, unmistakably, that, during the fall of 
1864 and the winter of 1864-5, Booth was brooding 



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HER TRIAL AND EXECUTION. 93 

over a wild plot for the capture of the President 
(either on one of his drives, or in the theatre, where 
the lights were to be turned off), then hurrying off 
the captive to lower Maryland, thence across the 
Potomac, and thence to Richmond ; thereby to force 
an exchange of prisoners, if not, possibly, a cessation 
of the war. It was a plot of the kind to emanate 
from the disordered brain of a young, spoiled, dis- 
sipated and disappointed actor. During this period, 
Booth made some trifling and miserably inadequate 
preparations, and endeavored to enlist some of his 
associates in its execution ; and, by his personal 
ascendency over them, he did in fact entangle, in a 
more or less vague adhesion to the plot, Arnold, 
O'Laughlin, Atzerodt, Payne, Herold, John H. 
Surratt, Lloyd, and, possibly, Dr. Mudd and Weich- 
man. 

On the fall of Richmond, and the surrender of 
Lee, this any-how impracticable scheme was neces- 
sarily abandoned. Indeed, the proof showed that 
Arnold and O'Laughlin had deserted their leader 
some time before. 

It further appeared in the testimony that it was 
not until after the forced abandonment of this plot 
and the desertion of most of his adherents, that 
Booth, plunged as he was into the depths of chagrin 
and despair because of the collapse of the rebellion, 
suddenly, as a mere after-thought, the offspring of 
a spirit of impotent revenge, seized upon the idea 
of murder, which was not in fact brought to the 



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94 MARY E. SURRATT. 

birth until the afternoon of the fourteenth, when 
he was first informed of the promised attendance of 
President Lincoln and General Grant at the theatre. 
Now, the existence of the plot to capture, although 
it looked forth from the evidence steadily into their 
faces, the Judge-Advocates bound themselves not 
to recognize. In the first place, such a concession 
would forever demolish the preconceived theory of 
the Secretary of War, Colonel Baker and the Bureau 
of Military Justice, that the conspiracy to murder 
emanated from the (Confederate Government through 
its Canadian agents, by pointing directly to another 
plot than the one to kill as that in which these 
agents had been interested. The horrid monster of 
a widespread, treasonable conspiracy to overthrow 
the government, which had been conjured up in the 
imagination of the Secretary of War and then cher- 
ished in the secret recesses of the Bureau of Military 
Justice, would have immediately shrunk into the 
comparatively simple case of an assassination of the 
President and an attempted assassination of the Sec- 
retary of State, by two worthless villains suddenly 
seizing opportunity by the forelock to accomplish 
their murderous purpose. And, in the next place, 
the concession of such a plot as a fact would go far 
to establish the innocence of Mrs. Surratt, Arnold, 
O'Laughlin and Mudd, as well as that of John H. 
Surratt, by explaining such suspicious circumstances 
as the frequent rendezvous of Booth, Payne and 
others at Mrs. Sun*att's house, which practice, as it 



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HER TRIAL AND EXECUTION. 95 

was proved, ceased altogether on the fall of Rich- 
mond and the immediate departure of the son to 
Canada. To the Judge- Advocates, if not to the 
Court, any evidence looking towards innocence was 
most distasteful and unwelcome. They were in no 
mood to reconcile what they considered the damning 
proofs of a conspiracy to kill their " beloved Com- 
mander-in-Chief" with the innocence of the fettered 
culprits before them, by admitting a plot to capture, 
into which nevertheless those same proofs fitted 
with surprising consistency. Besides, in the eyes 
of Bingham and Holt, complicity in a plot to cap- 
ture, although unexecuted, was proof of complicity in 
the plot to murder, and also of itself deserved death. 
In this direction, therefore, the Judge-Advocates 
were mole-eyed. On the contrary, they hailed the 
slightest indication of guilt with a glow of triumph. 
In the direction of guilt, they were lynx-eyed. 

Consequently, they bent every energy to identify 
the plot to capture with the plot to kill. They in- 
troduced anonymous letters, dropped letters ; a letter 
mailed nearly a month after the assassination directed 
to J. W. B. ; a letter in cipher, purporting to be 
dated the day after the assassination, addressed to 
John W. Wise, signed " No Five," found floating in 
the water at Morehead City, North Carolina, as late 
as the first of May ; this last, the most flagrant viola- 
tion and cynical disregard of the law of evidence on 
record. 



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96 MARY E. SURRATT. 

They did more. They labored to keep out all 
reference to the plot to capture. And it was for 
this reason, that the Judge-Advocates deliberately 
suppressed the diary found on the body of Booth. 
Its contents demonstrated the existence of the plot 
to capture. 

Instead of allowing the officer who testified to the 
articles taken from the dead body of Booth to make 
a detailed statement in response to one general ques- 
tion as to what they were, the examining counsel 
shows him first the knife, then the pistols, then the 
belt and holster, then a file with a cork at one end, 
then a spur, then the carbine, then the bills of 
exchange, then the pocket-compass; following the 
exhibition of every article with the interrogatory, 
" Did you take this from the corpse of the actor ? " 
But no diary was exhibited or even spoken of, al- 
though, as has been mentioned, it was carried by this 
same officer and Colonel Baker to Secretary Stanton 
on the night following the capture. That these 
Judge- Advocates had carefully searched through the 
diaiy for items they could use against the prisoners, 
is shown by their calling one of the proprietors of 
the " National Intelligencer,'^ as a witness, to con- 
tradict the statement that Booth had left a written 
article, setting forth the reasons for his crime, for 
publication in that paper — b. statement found only 
in the diary whose very existence they kept secret. 

Therefore, when Judge Bingham came to review 
the evidence, he utterly refused to recognize in the 



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HER TRIAL AND EXECUTION. 97 

testimony any such thing as a plot to capture ; he 
shut his eyes to it and obstinately ignored it ; he 
scornfully swept it aside as an absurdity it would 
be waste of time to combat ; and he twisted every 
circumstance which looked to a connection, however 
remote, with an abandoned plot to kidnap, into a 
proof, solid and substantial, of complicity in the plot 
to murder. 

And, therefore, when this same thorough-going 
advocate, with his two emulous associates, proceeded 
in secret conclave with the members of the Com- 
mission to go over the testimony for the purpose of 
making up their verdict and sentence, he summarily 
stifled any hint as to the possibility of a plot to cap- 
ture ; he banished from the minds of the Court, if 
they ever entertained such a purpose, any attempt 
to reconcile the circumstantial evidence with the 
existence of such a plot ; and, besides, he held it up 
to the condemnation of those military men as equally 
heinous and as deserving the same punishment as the 
actual assassination. 

Thus, the presence of these prosecutors during 
the deliberations of the Court must have exerted a 
deadly influence (if any influence were necessary) 
against the prisoners, and benumbed any imparti- 
ality and freedom of judgment which might other- 
wise have lodged in the members of the Commission. 

The Commission, with its three attending prose- 
cuting officers, held two secret sessions — Thursday 
and Friday, the 29th and 30th of June ; on the first 
7 



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98 MARY E. SURRATT. 

day from 10 o'clock in the morning until 6 o'clock 
in the evening, on the second day, probably, during 
the morning only. The record of the proceedings 
is meagre, but contains enough to show the lines of 
the discussion which, in such an unexpected manner 
through one whole day, prolonged the deliberations 
of a tribunal organized solely to obey the predeter- 
mination of a higher power, and even made necessary 
an adjournment over night. 

There was no difficulty with the verdicts, except 
in the case of Spangler, over the degree of whose 
guilt a majority of the Commission presumed for 
the first time to differ with the Judge-Advocates. 
They would unite in a conviction of the crime of 
assisting Booth to escape from the theatre with 
knowledge of the assassination, but they would go 
no farther. They would not find him a participant 
in the " traitorous conspiracy," This poor fellow, 
as we can see now^ was clearly innocent of the main 
charge; but that was no reason, theny why the 
Commission should find him so. There was more 
testimony pointing to his complicity with Booth 
on the fatal night than there was against Arnold 
or O'Laughlin or even Mrs. Siirratt; and Judge 
Bingham, the guardian and guide of the" Court, 
had pronounced it "Conclusive and brief." The 
testimony of the defense, however, appears over- 
whelmingly convincing, and, moreover, his case was 
admirably managed by General Ewing. 



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HER TRIAL AND EXECUTION. 99 

For all the rest there was no mercy in the ver- 
dict. Every one was found guilty of the charge as 
formulated (eliminating Spangler) ; that is, in the 
judgment of the Commission, they had, each and 
all, been engaged in a treasonable conspiracy with 
Jefferson Davis, John H. Surratt, John Wilkes 
Booth and the others named, to kill Abraham Lin- 
coln, President, Andrew Johnson, Vice-President, 
Wm. H. Seward, Secretary of State, U. S. Grant, 
Lieutenant-Greneral ; and that in pursuance of such 
conspiracy they (the prisoners) together with John 
H. Surratt and J. Wilkes Booth, had murdered 
Abraham Lincoln, assaulted with intent to kill W. 
H. Seward, and lain in wait with intent to kill 
Andrew Johnson and U. S. Grant. 

This was the deliberate judgment of the Com- 
mission as guided by Judge- Advocates Holt, Burnett 
and Bingham. With the same breath with which 
they pronounced the guilt of Mrs. Surratt, they pro- 
nounced also the guilt of her son, of Jefferson Davis, 
of Clement C. Clay, of George H. Sanders, of Bev- 
erly Tucker. And there can be no doubt that if 
these men had also been upon trial, they all would 
have been visited with the same condemnation and 
would have met the same doom. 

The Commission, further, found Herold, Atzerodt, 
Payne and Arnold guilty of the Specification as 
formulated (eliminating Spangler); Mrs. Surratt 
guilty, except that she had not harbored and con- 
cealed Arnold or O'Laughlin; Dr. Mudd guilty, 



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100 MARY E. SURRATT. 

except that he had not harbored or concealed Payne, 
John H. Surratt, O'Laughlin, Atzerodt or Mrs. 
Surratt ; and, strangest of al 1, they found O'Laughlin 
guilty of the Specification, excqpt thai he had not lain 
in wait for General Grant vnth intent to kill him, 
which was the very part in the conspiracy he was 
charged in the Specification with having undertaken. 
It should be recollected that, in the first moments of 
the panic succeeding the assassination, Stanton and 
his subordinates had included among the objects of 
the conspiracy, as if to complete its symmetry, the 
murder of the Secretary of War, himself. After- 
wards, probably because of the attitude of Stanton 
relative to the prosecution. Grant was substituted 
as the victim of O'Laughlin and not of Booth; 
Stanton's son having discovered a resemblance of 
the captured O'Laughlin to the mysterious visitor at 
his father's house during the serenade on the night 
of the 13th of April, when Greneral Grant was also 
present. This pretty romance, the testimony on 
behalf of O'Laughlin effectually dissipated on the 
trial, but the indomitable Bingham still insisted on 
holding the prisoner to a general complicity with 
the plot. In this instance, as well as in that of 
Spangler, there may have been some dissension 
between a majority of the officers and the Judge- 
Advocates, but, taken altogether, the eight verdicts 
could not have cost the Commission much time. It 
was organized to convict, and it did convict. 



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HER TRIAL AND EXECUTION. 101 

So that it was not until the Court, having made 
up its verdicts, proceeded to affix its sentences, that 
the three advocates, still assisting at the work of 
death, encountered the unforeseen difficulties which 
compelled a prolongation of the session. The crime 
or crimes of which the prisoners were all pronounced 
guilty (with the possible exception of Spangler^s) 
were capital, and the Secretary of War, on the eve 
of the assembling of the Commission, had already 
denounced against such offenses (not excepting 
Spangler's) the punishment of death. 

The sentence, however, under the rules governing 
military commissions, was wholly within the power 
of the Court, which, no matter what the nature of 
the verdict, could affix any punishment it saw fit, 
from a short imprisonment up to the gallows. Its 
two-fold function was, like a jury to find a verdict, 
not only, but, like the judge in a common-law court, 
to pronounce sentence ; and, unlike such a judge, in 
pronouncing sentence, the Commission was confined 
within certain limits by no statute. Although the 
whole proceedings of the Court must be subjected to 
the final approval of the President, yet its members 
were clothed alike with the full prerogative of justice 
and the full prerogative of clemency. There was 
one limit, however. While a majority could find 
the verdict and prescribe every other punishment, it 
required two-thirds of the Commission to inflict the 
penalty of death. Four officers, therefore, could 
block the way to the scaffold, and five could miti- 



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102 MARY E. SURRATT. 

gate any senteooe, to any d^ree, and for any, or for 
no reason. 

The Commission must have taken up the cases for 
sentence in the order adopted in the formal Charge. 
As to the first three — Herold, Atzerodt and Payne 
— ^there could have been no dissent or hesitation. 
The Commission, with hardly a moment's delibera- 
tion, must have ratified the judgment of the Judge- 
Advocates and condemned the prisoners to be hung 
by the neck until dead. The sentences of death 
formally declare in every instance that two-thirds 
of the Commission concur therein, but, as to these 
three, we can scarcely be in error in stating the Court 
was unanimous. It was not until the cases of the 
next three — CLaughlin, Spangler and Arnold — 
were reached, that symptoms of dissatisfaction with 
the sweeping doom of death, so confidently pro- 
nounced by Judge Bingham in his charge, first 
began to show themselves amongst the members of 
the Court. It seems that now, after having joined 
with the counsel in pronouncing capital punishment 
upon the three most prominent culprits, the majority 
could no longer whet their appetite for blood so as 
to keep it up to the same fierce edge as that of the 
Judge- Advocates. 

The deviations from the Charge and Specification, 
the Court had finally prescribed in the verdicts 
against O'Laughlin and Spangler, were not thought 
by the prosecutors to be of such importance as to 
warrant a softening of the sentence. But here the 



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HER TRIAL AND EXECUTION. 103 

loyalty of some members of the Commission began 
to falter, and refuse to bear the strain. They had 
found O'Laughlin guilty of the "traitorous con- 
spiracy/^ and Spangler guilty of aiding Booth to 
escape, and Arnold guilty in the same degree as 
Herold, Atzerodt and Payne, but in none of these 
cases could the attending advocates extort a two- 
thirds vote for death. In the case of Spangler, 
owing, it is said, to the impression made by Greneral 
Ewing and the influence of Greneral Wallace, they 
were compelled to allow a sentence of but six years 
imprisonment. And in the case of the two others 
— convicted co-conspirators with Booth and Davis 
though they were — these prosecuting oflGicers had to 
rest satisfied with but life-long imprisonment. 

It was too evident that five members of the Com- 
mission had slipped the bloody rein. Three lives 
had they taken. Henceforth they would stop just 
this side the grave. 

At this point — when the Commission had sen- 
tenced to death three men and had just declined to 
sentence to death two more whom it had pronounced 
guilty of the same crime — at this point it was, that 
the sentence of Mary E. Surratt came up for deter- 
mination. 

Now, the crimes of which Arnold had been found 
guilty were both in law and in fact the same of which 
she had been found guilty. Even the particular 
allegation in the Specification is the same in both 



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104 MARY E. SURRATT. 

cases, except some immaterial variance in the ver- 
biage and in the names of co-conspirators. 

Of course, it will be presumed that the Commis- 
sion had found the woman guilty without being 
pressed. But, equally of course, it will not be 
doubted that, in determining the sentence which 
should follow the verdict, the question of exercising 
the same mercy as the Commission had just exercised 
in the case of a man convicted of the same crime, 
must have arisen in the case of the woman. And, 
the question once having arisen, the first impulse of 
the majority, if inclined still to mercy, must have 
been to exert their own unquestioned function, and, 
as in the other cases, mitigate the sentence them- 
selves. They would have, originally, no motive to 
thrust upon the President, who was to know com- 
paratively nothing of the evidence, the responsibility 
of doing that thing, which they themselves who had 
heard the whole case thought ought to be done, and 
which in a parallel case they had just done. Even 
if they believed the woman's crime had a deeper 
tinge of iniquity than either Arnold's or Mudd^s 
(of which the respective verdicts, however, give no 
hint), but that nevertheless her age and sex ought 
to save her from the scaffold, they need not have 
turned to the President for mercy on such a ground. 
The woman clothed upon by her age and sex had 
sat for weeks bodily before them. This very miti- 
gation was what a majority of the Court had power 
to administer. The reason of the mitigation was a 



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HER TRIAL AND EXECUTION. 105 

matter of no moment. The Court could commute 
for "age and sex'^ as well as*the President, and, for 
that matter, could state the reason for the milder 
penalty in the sentence itself. 

Therefore, it may be taken for granted that here 
the Judge- Advocates again found that two-thirds of 
the Court would not concur in the infliction of the 
death penalty. Nay, that even a majority could not 
be obtained. Five out of the nine officers announced 
themselves in favor of imprisonment for life. 

Here, indeed, was a coil ! The prosecutors were 
at their wits' ends. And lo ! when they passed on 
to consider the last case, that of Dr. Mudd, the same 
incomprehensible reluctance to shed more blood did 
but add to their discomfiture. The verdict indeed 
had been easily obtainable, but the coveted death- 
sentence would not follow. The whole day had been 
spent in these debatings. The expedient of adjourn- 
ing over to the next day, perhaps, was now tried ; 
and the dismayed Judge- Advocates, with but three 
out of the eight heads they had made so sure of, 
and their " female fiend '^ likely to slip the halter, 
hurry away to consult with their Chief. 

Edwin M. Stanton, as he had presided over the 
whole preparatory process, so too had kept watch 
over the daily progress of the trial from afar. Every 
evening his zealous aide-de-camps made report for 
the day and took their orders for the morrow. 

After the death of Booth and the escape of 
John H. Surratt, the condemnation to death of the 



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106 MARY E. SURRATT. 

mother of the fugitive had become his one supreme 
aim. * 

The condemnation of the other prisoners was to 
him either a matter of no doubt or was a minor 
affair. Three heads of the band of assassins stood 
out in bloody prominence — Booth, John H. Surratt 
and Payne. The first had been snatched from his 
clutches by a death too easy. Payne, with hand- 
cuffs and fetters and chains and ball and hood, he 
might be confident, could not evade his proper doom. 
Surratt, by the aid of some inscrutable, malignant 
power, had contrived to baffle all the efforts of his 
widespread and mighty machinery of military and 
detective police. But he had the mother, the friend 
of Booth and the entertainer of Payne ; and she, 
the relentless Secretary with his accordant lackeys 
had sworn, should not fail to suffer in default of the 
self-surrender of her son. She, moreover, was to 
be made an example and a warning to the women 
of the South, who, in the judgment of these three 
patterns of heroism^ had " unsexed '^ themselves by 
cherishing and cheering fathers, brothers, husbands 
and sons on the tented field. 

In the conclave which Stanton and his two co- 
•adjutors held, either during the recesses of the pro- 
longed session of the first day, or most likely during 
the night of the adjournment, it was resolved, that 
if the manly reluctance of five soldiers to doom a 
woman to the scaffold could be overcome in no other 
way, to employ as a last resort the ^^ suggestion,^^ 



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HEK TRIAL AND EXECUTION. 107 

that the Court formally condemn her to death, and 
then, as a compromise, the soft-hearted five petition 
the President to commute — ^the three plotters trust- 
ing to the chances of the future, with the petition 
in their custody and the President under their d(f- 
minion, to render ineffectual this forced concession 
to what they scorned as a weak sentimentalism. 
This suggestion of what was in truth a most extras 
ordinary device — a petition to the President to do 
what the Court could do itself — could not have 
emanated from the merciful majority of the Court, 
which subsequently did sign the fatal document. 
They J at least, were sincere, and, if let alone, would 
have proceeded immediately to embody their own 
clemency in a formal sentence, as they had done with 
O'Laughlin and Arnold, and as they were about to 
do with Mudd. Had there been but one, or two, 
or three diss^tients, so that they were powerless in 
the face of two-thirds of the Commission ; or even 
had there been four — a number sufficient to block a 
death-sentence but not sufficient to dictate the action 
of the Court, then, indeed, recourse to the clemency 
of the Executive might have been a natural pro- 
ceeding. But a clear majority had no need to look 
elsewhere for a power of commutation which they 
themselves possessed in full vigor, and which, in all 
probability, after the first three death-penalties, they 
had determined to apply in every one of the other 
cases. Neither could the suggestion have been made 
by one of the minority, because none of them signed 



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108 MARY E. SURRATT. 

the petition to the last. The four must have been 
steadfast and uncompromising for blood. The 
whole scheme proceeded from a quarter outside the 
Court — a. quarter which, on the one hand, was pos- 
sessed by an overmastering revengeful passion, such 
as was required to point the five officers to a seem- 
ing source of mercy to which they might appeal and 
thus avoid the exercise of their own prerogative in 
antagonism to their four brethren, and, on the other 
hand, harbored some secret knowledge or malign 
intent that the petition would or should be, in fact, 
an empty form ; from a quarter, in short, where the 
desire for the condemnation to death of Mrs. Surratt 
was all-controlling and where the condition of the 
President was well known. They, who suggested 
the death- sentence and the petition as a substitute 
for the milder penalty, were surely all on the side 
of death, and hoped, if they did not believe, that 
the prayer of the petition would be of no avail; 
else they would not have adopted such a circuitous 
method to do what the five officers could immedi- 
ately have accomplished themselves. In one word, 
the contrivers of the device of petition were not those 
who desired to save the bare life of the convicted 
she-conspirator, but were those who would be satis- 
fied with nothing less than her death on the scaffi^ld. 
The suggestion was wholly sinister and malevolent. 
On the other hand, the majority of the Court did 
really desire that her punishment should not exceed 
that of Arnold, O'Laughlin and Mudd, and they 



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HER TRIAL AND EXECUTION. 109 

certainly would never have had recourse to a petition 
to the President, had they not been cheated into be- 
lieving that that method of proceeding was likely to 
effectuate what they had full power to do. Never 
would these five soldiers, or any two of them, have 
given their voices for the death of this woman, had 
they dreamed for a moment that their signing of 
the petition was, and was meant to be, but a farce. 
They would not have played such a ghastly trick 
under the shadow of the gibbet. 

Accordingly, when the Commission reassembled, 
either after recess or adjournment, the reinvigorated 
counsellors immediately unfolded their plan. We 
can almost hear their voices, in that upper room of 
the Old Penitentiary, as they alternately urge on 
the Court. Holt, making a merit of yielding in the 
cases of Spangler, of O'Laughlin, of Arnold and 
of Mudd, denounces the universal disloyalty of the 
women of the South, and pleads the necessity of an 
example. 

Bingham, holding up both mother and son as 
equally deep-dyed in blood with Booth and Payne, 
both insinuates and threatens at the same time, that, 
if " tenderness,^' forsooth, is to be shown because of 
the age and sex of such a she-assassin, then, for the 
sake of the blood of their murdered Commander-in- 
Chief, do not his own soldiers show it, but let his 
successor take the fearful responsibility. 

One of the five gives way, and now there is a 
majority for death. One more appeal ! The life of 



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110 MARY B. SURRATT. 

the woman trembles in the balance. Once more to 
the breach ! The supreme reserve is at last brought 
forward — an argument much in use with Judge- 
Advocates in cases of refractory courts-martial, as a 
last resort — that the President will not allow a hair 
of her head to be harmed, but that terror, terror, 
is necessary; in this instance, to force the son to 
quit his hiding place, the life of the mother must 
be the bait held out to catch the unsurrendering 
son. We will hang him and then free the woman's 
neck. 

Another vote comes over. Two-thirds at last 
concur, and her doom is sealed. They sentence 
" Mary E. Surratt to be hanged by the neck until 
she be dead." Judge Bingham sits down and em- 
bodies the memorable "suggestion" in writing as 

follows : • 

[It is without address.] 

'The undersigned, members of the Military Commission 
detailed to try Mary £. Surratt and others for the conspiracy 
and the murder of Abraham Lincoln, late President of the 
United States, &c., respectfully pray the President, in consid- 
eration of the sex and age of the said Mary £. Surratt, if he 
can, upon all the facts in the case, find it consistent with his 
sense of duty to the country, to commute the sentence of death, 
which the Court have been constrained to pronounce, to im- 
prisonment in the penitentiary for life. 

Respectfully submitted." 

General Ekin copies it on a half-sheet of legal-cap 
paper, and the five officers, viz. : Generals Hunter, 
Kautz, Foster and Ekin, and Colonel Tompkins, 



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HER TRIAL AND EXECUTION. Ill 

sign the copy ; General Ekin keeping the draft of 
Bingham as a memento of so gentle an executioner. 
The Commission then proceeds to the next and 
last case, and, again exercising its prerogative of 
clemency, sentences Dr. Mudd to imprisonment for 
life. It is now Friday noon. The result of the 
two-days^ secret session, consisting of a succinct 
statement of the verdict and sentence in every case, 
in the foregoing order, is redacted into a record. 
The presiding officer signs, and the Recorder coun- 
tersigns it. It is placed in the hands of the 
Judge-Advocate, together with the petition to the 
President. There is an adjournment without day. 
The members disperse, and the work of the Military 
Commission is over. 



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CHAPTER VII. 
The Death Warrant and the Execution. 

PROM Friday afternoon, the thirtieth of June, 
through Saturday, Sunday, Monday and 
Tuesday, the first four days of July, the record of 
the findings and sentences remained under the seal 
of sworn secrecy in the custody of the Judge- 
Advocate-General. To consummate the work of 
the Commission, the signature of the President to a 
warrant approving its action and directing the exe- 
cution of its judgment was necessary. But, during 
this interval, as it was given out from the White 
House, President Johnson was too ill to attend to 
public business. In the meantime, the city, and 
even the whole country to its very borders, were 
agitated by the question : What is to be the fate 
of Mrs. Surratt? The doom of the male culprits 
was for the moment forgotten in the intense anxiety 
over hers. 

Despite the seven-fold seal of secrecy which cov- 
ered the proceedings of the secret sessions, whispers 
of a recommendation of mercy filled the air. In 
the War Department, the main source of anxiety, at 
the same time, must have been this superfluous 
112 



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HER TRIAL ANB EXECUTIOK. 113 

paper — the distressing outcome of an unsuspected 
sentimental weakness in five of our chosen men. 
After the final adjournment of the Commission, 
the unobtrusive, unaddressed half-sheet had been 
fastened to the record of the sentences by the same 
narrow yellow silk ribbon which held its own sheets 
together, and to which it now dangled as a last leaf, 
or back. A safety-valve to the misplaced chivalry 
of the Court — it had served its purpose, and was 
henceforth useless. That it should now turn itself 
into an implement of evil, minister to the cause of 
rebellion and assassination, cause " Our Own Andy" 
to flinch at last and thus the she-fiend of the Bureau 
escape her doom ! It would be treason to sufier it. 
Upon that resolve, the Triumvirate of Stanton, 
Holt and Bingham had once for all determined. 
Indestructible, inconcealable, omnipotent, indeed, 
must that paper be, which could thwart their united 
purpose. 

At length, on the morning of Wednesday, the 
fifth, Preston King, who, in those days, was a 
favored guest at the White House, announced in the 
Judge-Advocate's office that the President was so 
much better as to be able to sit up ; and at a later 
hour in the day, General Holt, in pursuance of 
an appointment, started on his solemn errand. The 
volumes of testimony taken before the Commission 
by official stenographers, daily reports of which had 
been furnished, he, of course, did not carry with 
him. In the interview that was to come, there 
8 



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114 MARY E. SURRATT. 

would be no time and no inclination to read over 
bulky rolls of examinations and cross-examinations 
of witnesses. From aught that appears, the Presi- 
dent was not expected to read over the evidence, nor 
was it customary in such cases. It may have been 
the duty of the Secretary of War or the Attorney- 
General to scrutinize the testimony, either from day 
to day or at the close of the trial. But all that the 
President was supposed to know about the merits 
of the case appears to have been derived from what 
any of his Cabinet saw fit to inform him, from 
what he himself casually and unoflBcially read, but, 
especially and principally, from what the Judge- 
Advocate was now coming to tell him. As to the 
guilt of the accused, and especially of Mrs. Surratt, 
his mind had long ago been made up for him by his 
imperious War Minister, from whose despotic sway 
he had not as yet recovered energy enough to free 
himself. He was still in that brief introductory 
period of his Presidency which may be called his 
Stanton Apprenticeship ; still eager " to make trea- 
son odious ;" full of threatenings to hang Davis and 
other Southern leaders. He had not yet awakened 
from the state of semi-stupefaction into which his 
sudden and awful elevation seems to have thrown 
him ; and, in this state, he must have been extremely 
averse to dwelling on any of the circumstances of the 
assassination to which he owed his high place. The 
idea of clemency to any one of the band of assas- 
sins, male or female, which his War-Secretary^s court 



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HER TRIAL AND EXECUTION. 115 

might convict, would have been intolerable to his 
imagination and sickening to his sense of security. 
What Andrew Johnson, at this moment, wanted was 
to push away from his mind all thoughts of the 
tragic end of his predecessor, and to allow retributive 
vengeance to take the most summary course with 
the least possible knowledge and trouble to himself. 
And this mood of the presidential mind was well 
known to the Judge- Advocate-General, as he entered 
the President's room. He brought with him so 
much of the record of the proceedings of the Com- 
mission as was necessary to the accomplishment of 
his errand — viz : the record of the findings and sen- 
tences, which the President was to endorse. This 
document consisted of a few sheets of legal-cap paper 
fastened together at the top, written on both sides in 
the fashion of l^al papers, i. 6., b^inning at the 
top of the first page and, on reaching the bottom, 
turning up the paper and writing on the back from 
the bottom to top. It was a document complete in 
itself, the written record ending on the first page of 
the last half-sheet — ^thus leaving blank the remainder 
of that page and the whole of the obverse side; 
ample room for the death-warrant. To this record, 
but forming no part of it, the Petition, as we have 
said, had been affixed, but in such a manner as to be 
easily separable without mutilation. He must also 
have brought with him his official report of the 
trial — styled " The formal brief review of the case,'' 
which was subsequently appended to the r^ular 



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116 MARY E. SURRATT, 

Report of the Judge- Advocate-General to the Sec- 
retary of War and transmitted to the Congress in 
December following — because it is addressed "To 
the President," is dated " July 5, 1865," and is signed 
"J.Holt." It recites the verdicts and sentences; 
justifies its brevity by referring to " the full and ex- 
haustive " argument of Judge Bingham ; certifies to 
the regularity and fairness of the proceedings ; and 
recommends the execution of the sentences ; hvt it 
makes no mention of the Petition, or any " suggestion^' 
of mercy. 

The Judge- Advocate could have anticipated no 
' difficulty in obtaining the approval of the President, 
conscious as he was that the grounds of such ap- 
proval were to be furnished to the President by 
himself. The approval being had, the fixing of the 
day of execution could cause no disagreement. His 
only possible source of embarrassment was the peti- 
tion for commutation. But it would be strange, 
indeed, if a few apt words could not further emas- 
culate the mild, hypothetical language in which his 
colleague, Bingham, had seen fit to clothe that paper. 

He found the President " alone," and (as he him- 
self says) " waiting for" him, " very pale, as if just 
recovered from a severe illness." 

" Without delay " he " proceeded to discharge the 
duty which brought" him "into his presence." 
What took place at this "confidential interview" 
(as Holt calls it) can never be precisely known ; the 
distinguished interlocutors having subsequently risen 



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HER TRIAL AND EXECUTION. 117 

into unappeasable quarrel over the presence or ab- 
sence of the petition, and given contradictory ver- 
sions. Whatever the truth may be, it is evident 
that everything went smoothly at the moment. The 
Judge- Advocate was not disappointed. No diffi- 
culty was encountered. What was done was done 
quickly and at once. The record may have been 
read over ; but this was hardly necessary, as the bare 
mention of the several sentences would convey a 
correct summary of its contents. He may have read 
the "brief review of the case" he had prepared. 
As Judge Holt relates, he said to the President, 
" frankly, as it was his official duty to do," that in 
his judgment " the proceedings of the Court were 
regular, and its findings and sentences justified by 
the evidence, and that the sentences should be en- 
forced." And this was what he had written in his 
" Brief Heview." What more could the successor 
•of the murdered Lincoln want ? His approval must 
have been spontaneous and immediate. As Holt 
says, " at that time Mr. Johnson needed no urging." 
Mention may have been made of the curious weak- 
ness infecting some members of "our Court" towards 
the wicked w^oman, who, as Johnson seems then to 
have thought, " had kept the nest that hatched the 
egg ; " but only to be scouted by both Judge- Advo- 
cate and President as most reprehensible and actually 
disloyal. 

Their unanimity over the salutary eflfect of the 
hanging of this one woman on the female rebels was 



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118 MARY E. 8URRATT. 

more than fraternal. And it is probable that no 
more explicit mention of an actual petition was 
made by Judge Holt in his conversation with the 
President than was made in his written report to 
the President, dated the same day, and which he had 
with him at the time. 

The day of execution was fixed upon with the 
same alacrity. "Make it as soon as possible, so 
that the disagreeable business may be over ; say the 
day after to-morrow — Friday, the seventh." And, 
thereupon, everything being agreed upon. Judge 
Holt turns over the papers to the last page of the 
record and spreads it upon the table. Beginning, 
a few lines below the signature of "D. Hunter, 
President" which closes the record, with the date, 

" Executive Mansion, July 6th, 1865," 

" with his own hand " he writes out the death war- 
rant. As this includes the approval of the sentences* 
the appointment of the day and hour of execution, 
and the designation of the place of confinement of 
those condemned to imprisonment, the bottom of the 
page is reached before he completes his task. If he 
had turned up the page and continued his writing 
on the obverse side from the bottom down, as all 
the foregoing had been written, then the petition of 
mercy, unaddressed as it was, would have been, if 
still attached, directly beneath the eye of the Presi- 
dent as he signed the death-warrant. But, as now 
appears from the record itself, the careful Judge- 



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HER TRIAL AND EXECUTION. 119 

Advocate did not turn up the page from the bottom. 
On the contrary, reverting to the layman's way of 
writing papers, he whisks the whole record over, and 
continues the writing of the death-warrant on the 
back of the last half-sheet of the record from the 
top to the bottom — by this change of method, either 
throwing the petition under the leaves of the record, 
or, if disengaged, leaving it upside down. 

When he has thus finished his draft he shoves it 
over to the President. The President signs it with 
tremulous hand. The "confidential interview" is 
at an end ; and the Judge- Advocate, taking up the 
papers, hurries out and over to the Department of 
War. 

At this moment the petition disappears from view. 
We hear no more of it. Thrust as a convenient 
succedaneum into the hands of the majority of the 
Commission, ignored, suppressed or slurred over 
when before the President, it had served its pitiful 
purpose. Neither the Adjutant-General nor any of 
his clerks, appear to have noticed it, although the 
record must have been copied more than once in his 
office. It seems to have sunk suddenly into oblivion ; 
its very existence became the subject of dispute. It 
was omitted from the authorized published proceed- 
ings of the Commission, It was omitted from the 
annaal report of the Judge- Advocate. The disloyal 
paper must have been laid alongside the suppressed 
" Diary," there to repose unseen until the Impeach- 



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120 MARY B. 8URRATT. 

ment of Johnson and the Trial of Surratt summoned 
them together into the light of day. 

On the morning of Thursday, the sixth day of 
July, the six days ominous silence of the War- 
Department is broken. An order issues from the 
Adjutant-GeneraPs office which, bearing date the 
day before and reciting the findings and death- 
sentences of the Commission and the death-warrant 
of the President, commands Major-General Han- 
cock to see execution done, on the seventh, between 
the hours of ten and two. 

This order was read to Mrs. Surratt at noon. She 
had all along been encouraged to hope. She, herself, 
had never been able to realize the possibility of a 
capital condemnation in her own case. And, here, 
suddenly, was Death, with violence and shame, 
within twenty-four hours. She sank down under 
the blow. In faltering accents she protested that 
she had no hand in the murder of the President, and 
pleaded for a few days more time to prepare for death. 
During the remainder of the day and throughout the 
night, she was so prostrated by physical weakness 
and mental derangement as to necessitate medical 
aid to keep her alive and ^ane. The cries of her 
daughter could be heard in the still darkness outside 
the prison. At five o'clock in the morning, the 
mother (with the three condemned men), was re- 
moved to a solitary cell on the first floor, prepara- 
tory to the execution. 



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HER TRIAL AND EXECUTIOK. 121 

In the meaDtime, when it first became known that, 
by the sentence of the Commission and the direction 
of the President, Mrs. Surratt was to die by the rope 
on the same scaflFold with Payne, Herold and Atze- 
rodt within twenty-four hours, a chill of despairing 
terror froze the blood of her relatives and friends, a 
thrill of consternation swept over the body of the 
citizens, and dark misgivings disturbed even the 
most loyal breasts. A stream of supplicants at once 
set in towards the Executive Mansion — not only 
friends and acquaintances of the condemned woman, 
but strangers, high-placed men, and women too, who 
were haunted by doubts of her guilt and could in 
some degree realize her agony. 

But even this expiring effort of sympathy, the 
powers behind the President had anticipated. Ap- 
prehensive that Andrew Johnson, at the last moment, 
might yield to distressing importunities for more 
time, they had already taken measures that their sick 
man's wish to hear nothing till all was over should 
be scrupulously respected. Preston King and General 
James Lane undertook to keep the door and bar all 
access to the President during the dreadful interval 
between the promulgation of the sentence and its ex- 
ecution. It was rumored that they, with a congenial 
crew, held high revelry around their passive Chief 
in his private apartments. Be this as it may, no 
supplicant — friend, acquaintance or stranger — was 
allowed to gain access to the President. 



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122 MARY E. SURRATT. 

The priests^ who had attested upon her trial the 
good character, the piety and the general worth of 
their parishioner, instinctively turned their steps to 
the White House to beg for clemency, or, at least, a 
respite. They were repulsed from its door. In 

ghastly mockery, they were told to go to Judge 

Holt. 

At last, the daughter of the victim made her way 
to the very threshold of the President's room. 
Frenzied with grief she assailed the portal with her 
cries for admission to plead for her dying mother. 
She was denied admittance. In the extremity of 
her despair she lay down upon the steps, and, in the 
name of Grod, appealed to the President and to the 
wardens, only to listen to her prayer. The grim 
guardians of the door held it shut in her face. 

Denied, thus, even an appeal to Executive clem- 
ency, the friends of the poor woman, as a last most 
desperate resort, invoked the Constitution of their 
and her country through the historic writ of Habeas 
Corpus. On the morning of the day of the execu- 
tion, they found a judge (Judge Wylie ; all honor to 
his memory ! ) who had the independence and cour- 
age to grant the writ. At half-past eleven, General 
Hancock appeared before the Judge and made return 
that by order of the President the Habeas Corpus 
was suspended and therefore he did not produce the 
body. The order of the President dated ten o'clock, 
same morning, was annexed to the return and directed 
the General to proceed with the execution. 



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HER TRIAL AND EXECUTION. 123 

No sooner had the guarantees of the Constitution 
been, thus, finally set at naught, than the oell-doors 
were thrown open and the prisoners summoned to 
their doom. As the enfeebled widow raised her 
trembling limbs from off the coarse mattress which 
alone separated her body from the stone floor of her 
dungeon, she strove, in broken words, to assure the 
soldiers, who had come to bind her arms behind her 
back and tie cords around her skirts above and be- 
low the knee, of her utter, yet helpless innocence. 
Her confessor, who stood by her until the last, gently 
pointed out to her the uselessness of such appeals, 
at such a moment, and directed her hopes towards 
Heaven. 

Amid the tolling of the bells, sending a shudder 
through the silent population of the city, and her- 
alded by the tramp of armed men, the death-march 
of the doomed woman and the doomed men begins. 
The still breathing men and still breathing woman 
are clothed already in their shrouds. As she totters 
first along the corridor, accompanied by her priest 
and requiring two soldiers to hold her erect, the very 
extremity of her helplessness and woe bears witness 
in her favor. Even the bloody Payne, who walks 
next behind her, has broken through that stolid in- 
difference to his own fate, so remarkable as to indi- 
cate insanity, to clear her from all complicity with 
the assassination. Herold and Atzerodt, who fol- 
low, though themselves speechless with terror, seem 
to wave her mute acquittal, as they stumble along into 



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124 MARY E. SURRATT. 

the swift-coming Darkness. They reach the prison- 
yard. They mount the high scaffold. They are 
seated in four chairs facing the four dangling nooses, 
while the death-warrant is once more read. Their 
graves, already dug, are in full sight close by. 
Their coflBns stand by the side of the open graves. 
They are raised up and pushed forward upon the two 
drops, Herold and Atzerodt on one, Mrs. Surratt and 
Payne on the other ; the half-conscious woman still 
supported by the two guards. The ropes are ad- 
justed. The hoods drawn over the face. The signal 
is given. The two drops fall. Surrounded by the 
unpitying soldiery, headed by the unpitying Hart- 
ranft, the woman and the men hang writhing in the 
agonies of an ignominious death. When pronounced 
dead, the bodies are cut down. They are laid out on 
the top of the coffins. A hurried post-mortem ex- 
amination is made. And, then, at four o'clock in 
the afternoon, they are inclosed in the coffins and 
buried side by side. The soldiers depart with flour- 
ish of trumpet and beat of drum. Silence descends 
on the grounds of the old Arsenal ; broken only by 
the pace of the sentinel set to guard the four corpses. 

The daughter may beg the stern Secretary to yield 
up the body of her murdered mother, that she may 
place it in consecrated ground. But she will beg in 
vain. 

And so ended the fell tragedy. And so did brave 
soldiers avenge the murder of their " beloved Com- 
mander-in-Chief." Methinks their beloved Com- 



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HER TRIAL AND EXECUTION. 125 

mander-in-Chief, could his freed spirit have found 
a mortal voice, would have spurned, with indignant 
horror, the savage sacrifice of a defenseless woman 
to appease his gentle shade. 



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CHAPTEK VIII. 
Was it not Murder? 

AND now what shall be said as to this taking 
of human life ? 

Maintaining the most rigorous allegiance to the 
simple unadulterated truth, what can be said ? Ar- 
raigned at the bar of the common law as expounded 
by the precedents of centuries, and confronted by 
plain provisions of the Constitution of the United 
States, which need no exposition and yet have been 
luminously expounded ; but one thing can be said. 

Had Mary E. Surratt the right guaranteed by 
the Constitution to a trial singly and alone, in a reg- 
ularly constituted civil court, and by a jury of the 
vicinage, the individuals of which she might select 
by challenge, both for cause, in all cases, and with- 
out cause to a certain number, before she could be 
legally convicted of any crime whatever, or be law- 
fully punished by the most trivial loss of property 
or the minutest injury to limb, to say nothing of the 
brutal crushing out of her life ? That^s the unevad- 
able question which the ages put and will continue to 
put. And upon its precisely truthful answer, de- 
pend the character and color of the acts of every per- 
126 



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HER TRIAL AND EXECUTION. 127 

son who had lot or part in the execution of this 
woman. 

On the 21st day of October, 1864 — while the war 
was still raging — Lambdin P. Milligan, a citizen of 
the United States and a resident of Indiana, was ar- 
raigne<i before a Military Commission convened by 
the commanding General of that Military District, 
at Indianapolis, on the following charges preferred 
against him by Henry L. Burnett, Judge-Advocate 
of the Department of the West : 

1. Conspiracy against the Government of the 
United States. 

2. Afifording aid and comfort to the rebels. 

3. Inciting insurrection. 

4. Disloyal practices. 

5. Violation of the laws of war. 

There were also specifications, the substance of 
which was that Milligan had joined and aided a se- 
cret society, known as the Order of American Knights 
or Sons of Liberty, for the purpose of overthrowing 
the Government and authorities of the United 
States ; had communicated with the enemy ; con- 
spired to seize munitions of war in the arsenals, and 
to liberate prisoners ; resisted and encouraged resist- 
ance to the draft : at or near Indianapolis, in Indi- 
ana, " a State within the military lines of the Army 
of the United States, and the theatre of military op- 
erations, and which had been and was constantly 
threatened to be invaded by the enemy /^ 



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128 MARY B. StJRRATT. 

On these charges and specifications, Milligan was 
subjected to a lengthy trial by this Military Com- 
mision which finally found him guilty on all the 
charges and sentenced him to be hanged. The record 
was approved by the Commanding General, and then 
transmitted to President Lincoln, who held it long 
under advisement, and was so holding it when he 
was killed. His successor, at about the same time 
that he summoned the Commission to try Mrs. Sur- 
ratt, at length approved the findings and ordered the 
sentence to be executed on Friday, the 19th day of 
May, 1865. 

But this object-lesson to the Commission sitting 
at that date in the old Penitentiary was intercepted. 
On the 10th of May, Milligan brought the record be- 
fore the United States Circuit Court by a petition 
for his discharge, and, the two judges differing upon 
the main question of the jurisdiction of the Commis- 
sion, the cause was certified under the statute to the 
Supreme Court of the United States ; in deference to 
which action the President suspended the execution. 
The argument before that high tribunal coming on 
in the winter of 1865-66, a great array of counsel 
appeared upon both sides ; David D. Field, James 
A. Garfield and Jeremiah S. Black for the prisoner, 
and Attorney-General Speed and Benjamin F. But- 
ler for the United States. The counsel for the Gov- 
ernment followed the ^ame line as did Judge Bing- 
ham in his argument on the "Conspiracy Trial ;^^ 
the counsel for the prisoner on their side, only en- 



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HER TRIAL AND EXECUTION. 129 

larging, emphasizing and enforcing the argument of 
Reverdy Johnson. At the close of the term the 
Court unanimously decided that the Military Com- 
mission had no jurisdiction to try Milligan ; that 
its verdict and sentence were void ; and ordered the 
defendant discharged. 

At the next term, the Court handed down two 
opinions — one the opinion of the Court, read by 
Judge Davis, in which four of his colleagues con- 
curred, and one by Chief-Justice Chase, in which 
three of his colleagues concurred. The two opinions 
agreed that, as matter of law, the President could not 
of his own motion authorize such a Commission, and 
that, as matter of fact, the Congress had not author- 
ized such a Commission ; and therefore they were at 
one in their conclusion. But they diflFered in this ; 
that, whereas the majority of the Court held that 
not even the Congress could authorize such a Court, 
the minority, while agreeing that the Congress had 
not exercised such a power, were of opinion that such 
a power was lodged in that'branch of the Government. 

The attempt has often been made to distinguish 
the case of Mrs. Surratt from that of Milligan by 
alleging that Washington at the time of the assas- 
sination was within the theatre of military opera- 
tions, and actually under martial law, whereas Indi- 
ana at the time of the Commission of Milligan's 
alleged offenses was not. 

Now, it must be admitted that at the time of the 
murder of President Lincoln the war had swept far 
9 



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130 MARY E. 8URRATT. 

away from the vicinity of the Capital. There had 
been no Confederate troops near it since Early's raid 
in the summer of 1864, and no enemy even in the 
Shenandoah Valley since October. It must also be 
admitted, and was, in fact, proved on the trial, that 
the civil courts were open and in foil and nnob- 
structed disdbarge of their functions. As for the 
reiterated affirmation of Judge Bingham that the 
courts were only kept open by the protection of the 
bayonet; that is precisely what was aflSrmed by 
General Butler, in his argument before the Supreme 
Court, to have been the fact in Indiana. 

None of the counsel in the Milligan case claimed 
that a Military Commission could possibly have 
jurisdiction to try a simple citizen in a State where 
there was no war or rumors of war. 

" We do fully agree, that if at the time of these occurrences 
there were no military operations in Indiana, if there was no 
army there, if there was no necessity of armed forces there, 
* * * then this Commission had no jurisdiction to deal 
with the relator, and the question proposed may as well at once 
be answered in the negative." 

They contended, as the very basis of their case, 
that the acts of Milligan " took place in the theatre 
of military operations, within the lines of the army, 
in a State which had been, and then was constantly 
threatened with invasion.^' 

And, in fact, the record in so many words so 
stated, and the statement was uncontroverted by 
the relator. 



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HER TRIAL AND EXECUTION. 131 

Greneral Butler with great earnestness put the 
question : 

^' If the Court takes judicial notice that the courts are open, 
must it not also take judicial notice how, and by whose protec- 
tion, and by whose permission they were so open ? that they 
were open because the strong arm of the military upheld them ; 
because by that power these Sons of Liberty and Knights of 
the American Circle, who would have driven them away, were 
arrested, tried and punished. 

" If the soldiery of the United States, by their arms, had not 
held the State from intestine domestic foes within, and the at- 
tacks of traitors without ; had not kept the ten thousand rebel 
prisoners of war confined in the neighborhood from being re- 
leased by these Knights and men of the Order of the Sons of 
Liberty ; there would have been no courts in Indiana, no place 
in which the Circuit Judge of the United States could sit in 
peace to administer the laws." 

Moreover, the opinion of the minority Judges 
bases their contention that Congress had the power, 
if it had chosen to exercise it, to authorize such a Mil- 
itary Commission, upon this very fact. 

** Inln^ana, for example, at the time of the arrest of Milligan 
and his co -conspirators, it is established by the papers in the rec- 
ord, that the State was a military district ; was the theatre of mili- 
tary operations, had been actually invaded, and was constantly 
threatened with invasion. It appears, also, that a powerful se- 
cret association, composed of citizens and others, existed within 
the State, under military organization, conspiring against the 
draft, and plotting insurrection, the liberation of the prisoners 
of war at various depots, the seizure of the State and national 
arsenals, armed co-operation with the enemy, and war against 
the national government." 



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132 MARY E. SURRATT. 

Not one of which circumstances (except that it 
was a military district) can be truthfully predi- 
cated of the District of Columbia at the time of 
the assassination. 

As for actual martial law, there was no declara- 
tion of martial law claimed for the City of Washing- 
ton, other than the proclamation of the President 
which applied as well to Indiana, and, indeed, to the 
whole North, 

We are justified, therefore, in saying, that the 
Supreme Court of the United States, in this case of 
Milligan, pronounced the final condemnation of the 
whole proceedings of the Military Commission which 
tried and condemned Mary E. Surratt; declaring, 
with all the solemn force of a determination of the 
highest judicial tribunal known to this nation, that 
every one of its acts, from its creation by the Pres- 
ident to its transmission of its record of doom to 
the President, was in direct contravention of the 
Constitution of the United States and absolutely null 
and void. 

That illustrious Court, speaking by Judge David 
Davis, thus enunciates the law : 

" The Constitution of the United States is a law for rulers and 
people, equally in war and in peace, and covers with the shield 
of its protection all classes of men, at all times, and under all 
circumstances. No doctrine, involving more pernicious conse- 
quences, was ever invented by the wit of man than that any of 
its provisions can be suspended during any of the great exigen- 
cies of government. Such a doctrine leads directly to anarchy 
or despotism." * 



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HER TRIAL AND EXECUTION. 133 

** From what source did the Military Commission * * derive 
their authority ? ' * 

" It is not pretended that the commission was a court ordained 
or established by Congress." 

" They cannot justify on the mandate of the President ; be- 
cause he is controlled by law and has his appropriate sphere of 
duty, which is to execute not to make the law ; and there is no 
unwritten criminal code to which resort may be had as a source 
of jurisdiction." 

" The laws and usages of war can never be applied to citizens 
in states which have upheld the authority of the government 
and where the courts are open and their processes unobstructed. 
And no usage of war could sanction a military trial there for 
any offence whatever of a citizen in civil life, in nowise con- 
nected with the military service. Congress could grant no such 
power ; and to the honor of our national legislature be it said 
it has never been provoked by the state of the country even to 
attempt its exercise." 

" All other persons," (i. e., all other than those in the mili- 
tary and naval service) " citizens of states where the courts are 
open, if charged with crime, are guaranteed the inestimable 
privilege of trial by jury. This privilege is a vital principle, 
underlying the whole administration of criminal justice ; it is 
not held by sufferance, and cannot be frittered away on any 
plea of state or political necessity." 

" It is claimed that martial law covers with its broad mantle 
the proceedings of this Military Commission." 

" Martial law cannot arise from a threatened invasion. The 
necessity must be actual and present ; the invasion real, such 
as effectually closes the courts and deposes the civil adminis- 
tration." 

** Martial law can never exist where the courts are open, and 
in the proper and unmolested exercise of their jurisdiction. It 
is also confined to the locality of actual war." 

Had the swift process by which this unfortunate 
woman was hurried to the scaffold been interrupted 



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134 MARY E. SURRATT. 

by a stay to allow a review by the same high tribu- 
nal which rescued Milligan from the jaws of death, 
it canuot be doubted that in her case, as in his, the 
same conclusions would have been reached, viz.: 

Ist. "One of the plainest constitutional provisions was, 
therefore, infringed when" (Mary E. Surratt) "was tried by a 
court not ordained and established by Congress, and not com- 
posed of judges appointed during good behavior." 

2nd. "Another guarantee of freedom was broken when" 
(Mary E. Surratt) "was denied a trial by jury ;" 

that, in her case, as in his, the Court would have set 
the prisoner free ; there would have been no hang- 
ing, no felon's grave, and not even an ulterior at- 
tempt at a constitutional trial. 

For it is remarkable that although the Military 
tribunal which tried Milligan pronounced him guilty 
of crimes deserving a traitor's death ; thejseeming 
strength of the evidence must have melted away, 
strangely enough, when subjected to the prospective 
investigation of constitutional courts, as there was 
not even a subsequent efifort on the part of the Gov- 
. ernment to call him to account. 

Let us add, as a final corollary to this exposition 
of the Constitution by the Supreme Court, the fol- 
lowing remark : that the gisound and argument em- 
ployed by Attorney General Speed in his opinion 
upon the right of the President to order the trial of 
the alleged assassins by Military Commission, and 
by Judge- Advocate Bingham in his address to that 
Commission, involve^; a redudio ad abaurdum^ or. 



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HER TRIAL AND EXECUTION. 135 

rather, a reductio ad monstrosumj that is, a Redudio 
ad absurdum quia monatroaum. 

For, that ground and that argument, invoked to 
uphold and sanction the trial of civilians by military 
commissions, necessarily and inevitably go farther, 
and proclaim the right of President Johnson, alone, 
of his own motion and without the interposition of 
a formal court, whether military commission or 
drum-head court-martial, to hav<e commanded the 
immediate execution of every person whom he might 
believe to be guilty of participation in the assassina- 
tion of his predecessor or in the presumed attempt 
upon himself. 

The conclusion forced upon us, therefore, — the one 
only thing to be said — is, that the hanging of Mary 
E. Surratt was nothing less than the crime of murder. 

Murder, not only in the case of the private soldiers 
who dragged her to the scaffold and put the rope 
about her neck ; they, at least can plead the almost 
irresistible force of military discipline. 

But murder, also, in the case of the Major-General 
whose sword gave the signal for the drop to fall. 
Greneral and soldiers are in the precise position, be- 
fore the law, of a mob of Lynchers carrying out the 
judgment of a Lynch court. 

Murder, not only in the case of the one military 
oflScer who superintended the details of the execu- 
tion. He, too, though with much less force, can 
plead that he was the mere bailiff of what he believed 
to be a competent Court. 



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136 MARY E. SURRATT. 

But murder, also, on the part of the nine military 
oflSoers and the three advocates who tried and sen- 
tenced this woman to death. These men, in the 
forum of the law, stand in the precise position 
of any nine policemen steered by any three police 
attorneys in the city of New York, who should 
dare to try, convict and sentence to death a citizen 
of that city. 

Murder, not only on the part of the Commission 
and its lawyers ; they too might, possibly, plead — 
though with still diminishing force — that, although 
they were warned and took the awful responsibility, 
still they believed in their competency. 

But murder, also, in the President of the United 
States, who appointed the court, approved its find- 
ings, and commanded the execution of its sentence. 
He stands before the law in the same position as 
though, sweeping aside all empty forms, he had seized 
a sword and with his o^n hand cut off the head of 
the woman, without the mockery of a trial. In our 
frame of government, there is surely no room for such 
a twi-formed barbarian-despot, as a President having 
the power to pick out from the army, of which he is 
the commander-in-chief, the members of a court to 
try and punish with death, at his option, any one of 
the citizens, for an abortive attempt on his own life. 

And it was murder, not only in the case of the Pres- 
ident; he, too, but with scarcely audible voice, might 
plead the coercion of his situation — sitting as he did 
in the seat of the murdered Lincoln. 



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HER TRIAL AND EXECUTION. 137 

But it was murder, also, in the Secretary of War, 
who initiated the iniquitous process, pushed on the 
relentless prosecution, shut his own ears and the ears 
of the President to all pleas for mercy, presided like 
a Moloch over the scaffold, and kept the key of the 
charnel-house, where, beside the unpitied carcasses 
of the reputed ruffians forced upon her in her ordeal 
of torture and in the hour of death, the slaughtered 
lady lay mouldering in her shroud. Here, at least, 
the plea of mitigation exhales in a cry like that of 
Payne, " I was mad ! ^^ 

Weigh the extenuating circumstances in whatever 
scale you may ; extend as much mercy as possible 
to those who showed no mercy in their day of power — 
still, the offense of every one and all, who had hand, 
part or lot in this work of death, contains every ele- 
ment which, under the most rigorous definition of 
the law, makes up the Crime of Murder. The 
killing was there. The unlawful killing was there. 
The premeditated design to effect death was there. 
The belief of the perpetrators, that they had a 
right to kill, or that they were commanded to 
kill by an overruling power, before a court of 
law avails not a whit. Ignorance of the consti- 
tution as well as the law excuses no man, be he 
civilian or soldier. President or assassin, War- 
Minister or Payne. 

Murder it essentially was, and as such it should 
be denounced to the present and future generations. 



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138 MARY E. SURBATT. 

Garrett Davis told no more than the exact truth 
when he declared in his place in the Senate of the 
United States: 

'* There is no power in the United States, in time of war or 
peace, that can legitimately and constitutionally try a civilian 
who is not in the naval or military service of the United 
States, or in the militia of a State in the actual service of the 
United States, by a court-martial or by a military commission. 
It is a usurpation, and a flagitious usurpation of power for any 
military court to try a civilian, and if any military court tries 
a civilian and sentences him to death and he is executed under 
the sentence, the whole court are nothing but murderers, and 
they may be indicted in the State courts where such military 
murders are perpetrated ; and if the laws were enforced firmly 
and impartially every member of such a court would be con- 
victed, sentenced and punished as a murderer." 

Although the actual guilt of any of the victims 
constitutes no legal defense to this fearful charge, 
yet as the unquestioning obedience which the soldier 
yields, as a matter of course, to the commands of 
his superior officer must alleviate, if it do not wipe 
away, the guilt of the members of the Commission, 
in the forum of morals; so the ascertainment that 
the sufferers on the scaffold and in prison, in fact, 
deserved their doom, cannot but blunt the edge of 
our condemnation of the iniquity of the trial, as well 
as weaken our pity for the condemned and our sense 
of shame over the tyrannous acts of the government. 

A word or two, therefore, will be appropriate in 
respect to the sufficiency of the testimony to estab- 
lish the guilt of the accused. 



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HER TRIAL AND EXECUTION. 139 

I. As to Arnold and O'Laughlin, it may be said 
in one emphatic word, that there was no evidence 
at all against them of complicity in the plot to kill. 
The letter of Arnold to Booth shows, when fairly 
construed, that, if the writer had conspired with the 
actor, he conspired to abduct; and, also, for the 
time being, even that conspiracy he had abandoned. 
He was at Fort Monroe for the two weeks prior to 
the assassination. His confession, used on the trial 
against himself not only but also against O'Laugh- 
lin because he was mentioned in it as present at a 
meeting of the conspirators, was a confession only 
of a conspiracy to abduct which had been given up. 
The condemnation of these two men was brought 
about by the conduct of Judge Bingham, to which 
we have drawn attention, in systematically shutting 
his eyes to the existence of any conspiracy to cap- 
ture, and employing the letter and confession as 
proof that both these men were guilty of con- 
spiracy to murder. 

II. As to Dr. Mudd, the evidence leaves it 
doubtful whether or not he recognized Booth under 
his disguise on the night he set his broken leg, and 
therefore whether he may have been an accessory 
after the fact or not ; but the testimony of the in- 
former Weichman, by which chiefly if not solely 
the prosecution sought to implicate the doctor in 
the conspiracy to murder, was greatly damaged, if 
not completely broken down, by the proof on the 
part of the defense that Dr. Mudd had not been in 



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140 MARY E. SURBATT. 

Washington from November or December, 1864, 
until after the assassination. 

III. As to Payne, his guilt of the assault on 
Seward in complicity with Booth was clear, and 
confessed by himself. He was but twenty years of 
age, of weak mind, entirely dominated by the 
superior intellect and will of Booth. He claimed 
he acted under the command of his captain. He 
was so stolidly indifferent during the trial as to 
raise suspicion of his sanity, and he repeatedly 
expressed his wish for the termination of the trial 
so that he might cease to live. 

IV. As to the boy Herold, it was manifest that, 
as the mere tool and puppet of Booth, he was 
acquainted beforehand with the design of his master 
to kill the President, but there is no evidence that 
he aided or abetted Booth in the actual assassination 
in any way except to participate in his flight after 
he had got out of Washington. 

V. As to Atzerodt, for whom there appears to 
have been no pity or sign of relenting, it is never- 
theless a fact, that the testimony to his lying in wait 
for Andrew Johnson is so feeble as to be almost 
farcical. The poor German was a coward and 
never went near Johnson. There is no circum- 
stance in the evidence inconsistent with his own 
confession, that he was in the plot to capture, knew 
nothing of the design to murder until 8 o'clock on 
the evening of the 14th, and then refused to enact 
the part assigned him by Booth. 



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HER TRIAL AND EXECUTION. 141 

Indeed, it would appear as if the Commission, by 
a sort of proleptie vision of the future course of the 
President in his desperate struggle with the Con- 
gress, in grim irony actually hung Atzerodt because 
he did not kill Andrew Johnson. 

VI. And as to Mrs. Surratt, the only witnesses 
of importance against her are Weichman and 
Lloyd. Without their testimony the case for the 
prosecution could not stand for a moment. Weich- 
man, a boarder and intimate in her house, the col- 
lege chum of her son, and, equally with him, the 
associate of Payne, Atzerodt, Herold and Booth, 
who, frightened almost to death at the outlook, was 
swearing, under a desperate strain, to clear his own 
skirts from the conspiracy and thus save his threat- 
ened neck: — Weichman^s testimony before the 
Commission, even at such a pass, is for some reason 
quite vague and indefinite, and only becomes deadly 
when supplemented by Lloyd^s. This man Lloyd 
it was who, in fact, furnished the only bit of evi- 
dence directly connecting Mrs. Surratt with the 
crime. He testifies to two conversations he had 
with her — one on the 11th and the other on the 14th 
of April — when she alluded to the weapons left 
weeks before at the hotel at Surrattsville owned by 
her and kept by Lloyd — on the 11th, that the 
"shooting-irons" would be wanted soon; on the 
14th, that they would be called for that night. 
Lloyd, himself, however, admits, and it is otherwise 
clearly shown, that on the 14th he was so drunk as 



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142 MARY E. SURRATT. 

haidlj to be able to stand np. Llojd^ also, was 

deeply implicated in the conspiracy to capture if not 
to assassinate. He had aided the fugitive assassins 
to escape, had kept their weapons hidden in his 
house^ and he had, for two days after his arrest, 
denied all knowledge of Booth and Herold^s stop- 
ping at his hotel at midnight after the murder. 
He had been placed in solitary confinement and 
threatened with death. His nervous system, under- 
mined by debauchery, gave way ; his terrors were 
startling to witness and drove him well-nigh mad, 
and, at last, in a moment of distraction, he turned 
against Mrs. Surratt and her son. Like Weich- 
man^s, his, also, was the frenzied effort of a terror- 
stricken wretch to avoid impending death by push- 
ing someone forward to take his place. Keverdy 
Johnson, at the close of his plea to the jurisdiction 
of the court, let fall the following words, no less 
weighty for their truth than their force : 

"This conclusion in regard to these witnesses must be, in 
the minds of the Court, and is certainly strongly impressed 
upon my own, that, if the facts which they themselves state 
as to their connection and intimacy with Booth and Payne are 
true, their knowledge of the purpose to commit the crimes 
and their participation in them, is much more satisfactorily 
established than the alleged knowledge and participation of 
Mrs. Surratt." 

Moreover, the testimony of both these witnesses, 
suborned as they were alike by their terrors and 
their hopes, is perfectly reconcilable with the alter- 



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HER TRIAL AND EXECUTION. 143 

native hypothesis, either that the woman in what 
she did was an innocent dupe of the faaoDBlii^ 
actor, or that she was anaware of the sudden trans- 
formation of the long-pending plot to capture, of 
which she might have been a tacit well-wisher, into 
an extemporaneous plot to kill. 

Much stress was laid by Mr. Bingham on her 
solemn denial of any prior acquaintance with Payne 
when confronted with him on the night of her 
arrest. But it is more than probable that the non- 
recognition was unsimulated, because of the dis- 
guise and pitiable plight of the desperado, who had 
been hidden in the mud of the suburbs three days 
and three nights, and, also, because the non-recog- 
nition was shared with her by the other ladies of 
the house. Besides, that a woman, caught in the 
toils in which Booth and her own son had unwit- 
tingly involved her, under the terror of recent 
arrest and imminent imprisonment, should have 
shrunk from any acknowledgment of this midnight 
intruder, even to the extent of falsehood, certainly 
is in no wise incompatible with innocence. 

These are the only circumstances by which Mrs. 
Surratt is brought nearer than conjectural connec- 
tion with the assassination, and the force of these is 
greatly weakened by the testimony in her defense. 

It is neither necessary, nor relevant to this expo- 
sition, to enter into a lengthy discussion upon the 
'pro% and cofm of her case. Her innocence has been 
demonstrated in a more decisive manner by subse- 



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144 MARY E. SURRATT. 

quent events, and stands tacitly admitted by the 
acts of the ofl&cers of the government. Few impar- 
tial hearers would have said then, and no impartial 
readers will say now, that the testimony against her 
is so strong as to render her innocence a mere fan- 
ciful or even an improbable hypothesis. No one 
can say that a jury, to a trial by which she was 
entitled under the Constitution, would have pro- 
nounced her guilty, and every one will admit that 
had her sentence been commuted to imprisonment 
for life, as five of her judges recommended, she 
would have been pardoned with Arnold, Spangler 
and Mudd, and might have been living with her 
daughter to-day. The circumstances of the whole 
tragedy warrant the assertion that, had John H. 
Surratt been caught as were the other prisoners, he, 
and not she, would have been put upon trial ; he, 
and not she, would have been condemned to death ; 
he, and not she, would have died by the rope. If 
he was innocent, then much more was she. Mary 
E. Surratt, I repeat, suffered the death of shame, 
not for any guilt of her own, but as a vicarious 
sacrifice for the presumed guilt of her fugitive son. 



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F»ART? II. 

THE VINDICATION, 



CHAPTEE I. 
Setting Aside the Vebdict. 

WHEN the President of the United States, 
the Secretary of War, the Military Com- 
mission, the Judge- Advocates, and the Executioner- 
General had buried the woman against whose life 
the whole military power of the Government, fresh 
from its triumph over a gigantic rebellion, had been 
levelled ; — buried her broken body deep beneath the 
soil of the prison-yard, in close contact with the 
bodies of confessed felons; flattened the earth over 
her grave, replaced the pavement of stone, locked 
the door of entrance to the charnel-house and 
placed the key in the keeping of the stern Secre- 
tary ; — they may have imagined that the iniquity 
of the whole proceeding was hidden forever. 

But, horribile dictu ! the ghost of Mary E. Sur- 
ratt would not down. It troubled the breast of the 
10 145 



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146 MARY E. SURE ATT. 

witness Wftichman. It haunted the precincts of the 
Bureau of Military Justice. It pursued Bingham 
into the House of Representatives. It blanched 
the laurels of the great War Minister. Politics, 
history and the very vicissitudes of human events 
seemed subservient to the vindication of this humble 
victim. 

Hardly had the delivery of the prisons of Wash- 
ington, which followed the close of the trial, taken 
place, before the man who, as he himself swore, 
always had been treated as a son by the woman he 
betrayed, began to make advances to her sorrowing 
friends. He pretended to make confession of his 
perjury. He told a friend that his testimony would 
have been very much more favorable had it not 
been dictated to him by the officers who had him 
in charge; that the meeting of Lloyd and Mrs. 
Surratt was accidental, as she and he (Weichman) 
had already started for home before Lloyd returned, 
and only turned back because the buggy was dis- 
covered to be broken. The traitor soon discovered 
that he made no headway by such disclosures, but 
only met with a sterner repulse and a deeper loath- 
ing. His troubled soul then turned to another 
quarter. It has been stated that his testimony on 
the trial was somewhat indefinite and inconclusive. 
Complaints had been uttered by the officers con- 
ducting the prosecution. It was proved upon a 
subsequent occasion that one of these officers had 
actually threatened the witness that he would hang 



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HEB VINDICATION. 147 

as an accomplice in the assassination did he not 
make his evidence more satisfactory. It appeared, 
also, that the Secretary of War had promised to 
protect and take care of him. Driven back by 
Mrs. Surratt's friends from his attempt at propitia- 
tion, Weichman resolved that he would yet earn his 
reward by retouching his former testimony so as to 
make it more definite i^nd telling. He saw, at last, 
that to save himself from everlasting ignominy he 
must, as far as in him lay, make sure of the guilt 
of his victim. Actuated by these or similar 
motives, he, on the 11th day of August, 1865, 
wrote out, and swore to, a statement in which he, 
by a suspicious exercise of memory, detailed con- 
versations with Mrs. Surratt and significant inci- 
dents, all pointing to complicity with Booth, no 
mention of which had been made on the trial, and 
which this candid witness stated " had come to my 
(his) recollection since the rendition of my (his) testi- 
mony.^^ 

This affidavit, containing (if true) more evidence 
of the guilt of Mrs. Surratt than his whole testi- 
mony on the trial, but, on the other hand, drawn 
up to suit himself without fear of cross-examina- 
tion — he transmitted to Colonel Burnett, who, as 
though he, too, distrusted the sufficiency of the 
evidence against the dead woman as it had been 
actually given on the trial, was careful to append 
the ex parte statement to the published report. 



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148 MARY E. SURRATT. 

Weichman, at length, gets his reward in the 
shape of a clerkship in the Custom House at Phila- 
delphia. 

But the final breaking down of the fabric of tes- 
timony against the leaders of the rebellion, as insti- 
gators of the assassination, threw consternation into 
the Bureau of Military Justice and the Cabinet. 
Jefferson Davis was still confined in Fort Monroe, 
and two companies of United States soldiers, who 
had fought and shed each other's blood in their 
eagerness to be the first to seize the fugitive, were 
already quarreling over the $100,000 reward for 
his arrest as an accomplice of Booth. Clement C. 
Clay, for whose arrest $25,000 reward had been 
offered, as another accomplice, was also still in the 
hands of the authorities. Jacob Thompson, George 
N. Sanders and Beverly Tucker, for the arrest of 
each of whom $25,000 had been offered, were still 
at large. Every one of these men, it should be 
borne in mind, had been pronounced guilty by the 
military board which had condemned Mrs. Surratt. 
John H. Surratt, her sou, for whose capture an 
enormous reward had been offered both by the 
Government and by the City of Washington, and 
whom the Military Commission had condemned as 
the go-between of the President of the Confederacy 
and his agents in Canada in the instigation of the 
murderous conspiracy, and also as the active aider 
and abettor of both Booth and Payne in the perpe- 
tration of their bloody crimes ; he, too, had so far 



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HER VINDICATION. 149 

eluded all efforts to find even his whereabouts. It 
is only fair to presume that the astute lawyers con- 
nected with the Bureau of Military Justice must 
have had serious misgivings* from the first, concern- 
ing the testimony of the spies, Montgomery, Con- 
over and others, going to implicate Davis and the 
Canadian Rebels in the assassination. Such testi- 
mony was hearsay or secondary evidence at best; 
and they could have cherished no hope that such 
loose talk and the fragmentary repetition of letters 
heard read would ever be allowed to pass muster by 
an impartial judge in a civil court. And they had 
reason to believe that public opinion would not 
tolerate the experiment of another military com- 
mission. As early as July, 1865, an attempt was 
made to buy the papers of Jacob Thompson, among 
which it was supposed were the criminatory letters 
of Davis; and Attorney-General Speed was dis- 
patched with $10,000 government money to effect 
the purchase. William C. Cleary, for whom 
$10,000 reward had been offered as one of the con- 
spirators, and who had just been found guilty by 
the Military Commission, was to deliver the letters 
and receive the money. Speed met Cleary at the 
Clifton House, but the latter, in the meanwhile, had 
seen in a newspaper a portion of the testimony 
before the Military Commission implicating him, 
and he utterly refused to give up the papers, as he 
had to rely upon them, as he said, to vindicate him- 
self. The shadows thus began to darken over the 



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150 MARY E. SURRATT. 

credibility of the corps of spies that the Bureau 
had employed. Indictments for perjury against 
Montgomery, Conover and other paid witnesses 
began to be talked of. Friends, and enemies as 
well, of the imprisoned ex-President began to 
clamor for his trial or release. Even the implicated 
agents in Canada showed a bold front, and pro- 
fessed a willingness to meet the terrible charge if 
guaranteed a trial by jury. A jury ! A jury of 
twelve men ! Trial by jury ! If there was any- 
thing that could shake the souls of the. members of 
the Bureau of Military Justice, it was to hear of 
trial by jury. It was a damnable institution. It 
impeded justice. It screened the guilty. It was 
beyond control. It could not be relied on to con- 
vict. And yet it was to this tribunal they foresaw 
they must come. 

In September, 1865, embarrassing news arrived 
at the Department of State. The consul at Liver- 
pool informed the American Minister at London 
that John H. Surratt was in England and could be 
extradited at any time. Here was the villain who 
was, with Booth, the prime mover of the con- 
spiracy and the active accomplice of Booth and 
Payne in their work of blood. At least, so the 
Military Commission found, who hung his mother 
in his stead. And yet the United States Govern- 
ment informed Mr. Adams, and Mr. Adams so 
informed the consul, that the Government did not 
intend to prosecute. On the 24th of November 



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HER VINDICATION. 151 

ensuing, the War Department, by general order, 
revoked the " rewards oflFered for the arrest of Jacob 
Thompson, Beverly Tucker, George N. Sanders, 
William S. Cleary and John H. Surratt." Where 
now was the redoubtable Bingham who, over and 
over again, had assured the Commission he guided 
of the unmistakable guilt of all these persons? 
The whole theory of the Secretary of War, which 
he had preconceived in the midst of the panic fol- 
lowing the assassination, that the murder of the 
President was the outcome of a deep-laid and wide- 
spread conspiracy, of which Jefferson Davis was^ 
the head and Booth and Payne the bloody hands — 
this theory, which the Bureau of Military Justice, 
aided by Baker and his detectives, had so sedulously 
labored to establish, and which Judge Bingham had 
so persistently pressed upon the nine military men 
who composed the Court, to the exclusion of any 
such hypothesis as a plot to capture — this precon- 
ceived theory all at once fell to the ground. The 
perjured spies, who had been the willing and paid 
tools to build it up, were about to be unmasked and 
their poisoned fangs drawn. After no great interval, 
Conover was, in fact, convicted of perjury in another 
case, and sentenced to imprisonment in the Albany 
penitentiary. The whole prosecution of the so- 
called conspirators, from its inception to its tragic 
close, turned out to have been founded on an enor- 
mous blunder. The findings of the Commission 
were falsified. Whatever the guilt of the doomed 



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152 MARY B. 8URRATT. 

victims, they were not guilty of the crime of which 
they were convicted. The terrible conspiracy, 
stretching from Richmond to Canada, and from 
Canada back to Washington, involving statesmen 
and generals, and crowning the wickedness of rebel- 
lion with the Medusa-head of assassination, shrank 
into the comparatively common-place and isolated 
offense of the murder of Lincoln and the assault 
upon Seward, suddenly concocted by Booth, on the 
afternoon of the 14th of April, in wild despair over 
the collapse of the rebellion. In such a predica- 
^ment, the hanging of Mrs. Surratt could not have 
been a pleasing reminiscence to the Secretary of 
War, to Judge- Advocate Holt, or to the hangers-on 
of the Bureau of Military Justice. At such a 
moment they certainly had no use for her son John. 
On the 12th of November, Preston King, who 
held one side of the door of the White House while 
the daughter of Mrs. Surratt pleaded for admission, 
walked off a ferry-boat into the Hudson River, with 
two bags of shot in the pockets of his overcoat, and 
was seen no more. This event might have passed 
as a startling coincidence, to be interpreted accord- 
ing to the feelings of the hearer, had it not been 
followed by the suicide of Senator James S. Lane, 
who held the other side of the door, and who, on 
the 11th day of July, 1866, blew his brains out on 
the plains of Kansas. That these two men had 
together stood between the President and the filial 
suppliant for mercy, in a case of life and death, 



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HER VINDICATION. 153 

and that, then, within a year, both had perished by 
their own hands, aroused whispers in the air, caused 
a holding of the breath and a listening, as if to 
catch the faint but increasing cry of innocent blood, 
coming up from the ground. 

When the Congress met in December, 1865, the 
leaders of the dominant party were in a fierce and 
bitter humor. The Rebellion had been suppre^ed, 
the South subjugated and its chiefs captured, yet no 
one — not even the arch-traitor Davis — had been 
hung. And, more deeply exasperating still, the 
man they had elected Vice-President, and who had 
thus succeeded the martyred Lincoln, upon whom 
their hopes had been fixed to make treason odious, 
to hang the leaders higher than Haman, and to set 
aside the humane policy of reconstruction his pre- 
decessor had already outlined and substitute a more 
radical and retributive method — this man, whose 
precious life had been providentially spared from 
the pistol of the assassin to be the Moses of the 
colored people, and for harboring any such blas- 
phemous purpose as lying in wait for him, a Court, 
appointed by himself and whose sentence he himself 
had approved, had hung a bewildered German — 
why this man had already shown himself a rene- 
gade, was bent on a general amnesty, appeared to 
have forgotten the assassination, was already hob- 
nobbing with southern traitors, and was attempting 
to carry out a policy of reconstruction in the South, 
the result of which could be nothing less than the 



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154 MARY E. StJRRATT. 

dethronement of the party who had brought the 
war for the Union to a triumphant end. These 
men resolved that such treachery should be balked 
at whatever cost. Ignorant as yet of the tainted 
character and of the break-down of the evidence 
adduced to show Confederate complicity in the 
assassination^ the House of Representatives passed 
resglutions calling for the trial of Jefferson Davis 
for treason and for the other crimes with which he 
was charged ; the ill-starred Bingham, once again 
in the House, insisting that the Confederate Chief 
should be put upon trial before a military tribunal 
for the same offense of which his former court had 
found him guilty in his absence. The House 
appointed a committee to investigate the complicity 
of Davis and others in the assassination, and in 
July, 1866, through its chairman, Mr. Boutwell, 
made a report, followed by a resolution, " that it is 
the duty of the executive department of the Gov- 
ernment to proceed . with the investigation of the 
facts connected with the assassination of the late 
President without unnecessary delay, that Jefferson 
Davis and others named in the proclamation of 
President Johnson of May 2d, 1865, may be put 
upon trial," which was adopted nem, con. In this 
action, little as they recked, these radical politicians 
were the unconscious tools of that Nemesis which 
stalks after lawlessness and triumphant crime. 
This resolution, and the news that John H. Surratt 
had been betrayed by one of his comrades in the 



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HER VINDICATION. 



155 



Papal Zouaves into the hands of the Roman authori- 
ties, who had detained him to await the order of the 
American Government, and that the prisoner had 
escaped from his guard and fled to Malta, forced 
the Department of War to revoke the order of 
November, 1865, withdrawing the reward for the 
arrest of the fugitive. 

Meanwhile the great contest over the reconstruc- 
tion of the South waxed fiercer and fiercer. Con- 
gress, during this session, became farther and 
farther alienated from the President, so that when 
that body met in December, 1866, the reckless 
majority in both Houses united in the resolve to 
get rid of Andrew Johnson, not indeed by the 
bloody method employed by Booth, but by the no 
less efficient, though more insidious and less bold, 
expedient of impeachment by the House and con- 
viction by the Senate. No sooner had Congress 
convened than Mr. Boutwell made an attack upon 
the Executive for its dilatory action in the arrest of 
John H. Surratt, stating that he had reason to 
believe that the Government knew where the 
assassin was the May before. A committee appointed 
to investigate the matter made a report just at the 
close of the session obliquely censuring the Execu- 
tive Department for its lack of diligence in effecting 
the arrest. On January 7th, 1867, the famous 
Ashley introduced his resolutions impeaching 
Andrew Johnson. The Judiciary Committee, to 
which they were^ referred, took testimony during 



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156 MARY E. SURRATT. 

the winter and made a report at the close of the 
session that it was unable to complete the investiga- 
tion, and handed it over to the Fortieth Congress. 
That Congress met immediately at the close of the 
Thirty-ninth, and the testimony already taken was 
referred to the Judiciary Committee of its House, 
which proceeded with the matter during the spring 
and summer, and in November, 1867, after the 
recess; with the final result of a failure to pass the 
resolution of impeachment reported by a bare 
majority of the committee. 

In process of this investigation all sorts of accu- 
sations and charges were made against the Presi- 
dent. His enemies now employed the very same 
weapons against him which had been employed to 
convict the alleged assassins of his predecessor and 
the alleged conspirators against his own life. Gen- 
eral Baker and his detectives, Conover and his 
allies, appear once more upon the scene. They 
actually invaded the privileged quarters of the 
White House and stationed spies in the very private 
apartments of the President. This time, however, 
they are ready to swear, and in fact do swear, not 
to having seen letters from Jefferson Davis to his 
agents in Canada advising assassination, but letters 
from Andrew Johnson to Davis squinting in that 
direction. They actually charged the President 
with being an accomplice in the assassination of 
Abraham Lincoln. Forgetting that a human being 
had been hung for lying in wait to kill Andrew 



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HER VINDICATION. 157 

Johnson as a part of a general conspiracy to murder 
the heads of the Government, these desperate men 
propose to impeach the President for being an 
accomplice in his own attempted murder. Ashley 
openly denounced him, in the House of Representa- 
tives on the 7th of March, 1867, as "the man who 
came into the Presidency through the door of assas- 
sination,^^ and alluded to the " dark suspicion which 
crept over the minds of men as to his complicity in 
the assassination plot,'^ and "the mysterious con- 
nection between death and treachery which this case 
presents." Ashley had private interviews in the 
jail with Conover and Cleaver, who were confined 
there for their crimes, and they assured him of the 
guilt of Andrew Johnson. They furnished him 
with memoranda and letters purporting to show 
that Andrew Johnson and Booth were in communi- 
cation with each other before the murder of Lincoln, 
and that Booth had said before his death that if 
Andrew Johnson dared go back on him he would 
have him hung higher than Haman. To such pre- 
posterous stuff, from professional perjurers, did the 
zealous Ashley seriously incline. 

It was during this investigation that the evidence 
given by Secretaries Seward and Stanton and by 
Attorney-Generals Speed and Stansbery, demon- 
strated the utter futility of an attempt to establish 
complicity in the assassination on the part of Davis, 
Thompson and the rest, by witnesses who had been 



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158 MARY E. SURRATT. 

shown, in other cases, to be unworthy of a moment's 
belief. 

While the impeiichers were in the very act of 
pursuing the President as an accomplice in the 
murder of Abraham Lincoln, while the mighty Bing- 
ham, who had so eloquently defended President 
Johnson before the Military Commission against 
the charge of usurpation of power, and so bitterly 
denounced Jefferson Davis for alluding to Johnson 
as " The Beast," now, with a complete change of 
tune, was clamoring for the impeachment of " his 
beloved Commander-in-Chief;" — Jefferson Davis, 
himself, is brought, by direction of the Secretary of 
War, in obedience to a writ of habeas corpus, before 
the United States Court at Richmond ; there, with- 
out a word of remonstrance, transferred to the cus- 
tody of the civil authority; and forthwith dis- 
charged on bail, Horace Greeley, who had never 
seen him before, becoming one of his bondsmen. 
Since that day in May, 1867, no attempt has ever 
been made to call the ex- President of the Southern 
Confederacy to account as one of the conspirators in 
the murder of Lincoln. Clay had been let go on 
parole as long before as April 19th, 1866; his 
property was restored to him in February, 1867; 
and proceedings under an indictment found against 
him for treason and conspiracy, indefinitely sus- 
pended on the 26th of March of the same year. 
Thompson and Sanders and Tucker returned to 
their country and appeared unmolested amongst us. 



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HER VINDICATION. 159 

Jefferson Davis died recently full of years and 
honors. At the death of Thompson, the flags of 
the Interior Department were lowered half-mast. 
Tucker was appointed to ofiBce not long ago by 
President Harrison. And all this, notwithstanding 
the Judge- Advocate had assured the Military Com- 
mission that the guilt of these men was as clear as 
the guilt of Booth or of Surratt, notwithstanding 
the Military Commission under his guidance so 
found, and, had these men been present before that 
tribunal, would doubtless have hung them on the 
same scaffold with Mrs. Surratt. 

It was during this same investigation, that the 
diary of Booth, which had been so carefully con- 
cealed by the War Department and the Bureau of 
Military Justice from the Military Commission, 
was unearthed. Its publication produced a pro- 
found sensation, as it made clear the reality of a 
plan to capture the President ; a plan, which had 
been blasted by the collapse of the Rebellion and, 
only at the last moment and without consultation, 
arbitrarily superseded by a hurried resolution to 
kill. When produced by Judge Holt before the 
committee, its mutilated condition gave rise to a 
terrible suspicion. Holt, himself, and Stanton were 
confident the book was in the same condition as 
when they first saw it. Colonel Conger, also, 
though not positive, thought it was unchanged 
since he took it from the dead body of Booth. But, 
to the great wonder of everybody, the distinguished 



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160 MARY E. SURRATT. 

detective, General Baker, testified, and stuck to it 
with emphasis when recalled, that, when he first 
examined the diary before it was lodged with the 
Secretary of War, there were no leaves missing and 
no stubs, although the diary, as exhibited to the 
committee, showed by means of the stubs remaining 
that sixteen or twenty leaves had been cut or torn 
out. The disclosures made by the production of 
the diary, together with the fact of its suppression, 
stirred the soul of General Butler; and, in this 
way, it came about that the ghost of Mrs. Surratt 
stalked one day into the House of Representatives. 
Judge Bingham, in his rollicking way, was up- 
braiding General Butler for having voted for Jeffer- 
son Davis fifty times as his candidate for President, 
and slurring his war record by calling him "the 
hero of Fort Fisher ;^^ when, suddenly, at the 
petrific retort of his adversary that " the only victim 
of the gentleman's prowess was an innocent woman 
hung upon the scaffold ! " the spectre stood before 
him, forcing, as from "white lips and chattering 
teeth,'' the exclamation of Macbeth : " Thou canst 
not say I did it ! " 

" Look to the true and brave and honorable men 
who found the facts upon their oaths and pro- 
nounced the judgment ! " he retorted, clutching at 
the self-soothing sophistry of the murderer of 
Banquo, ignoring the fact that he himself was a 
part of the tribunal and virtually dictated the 
judgment. 



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HER VINDICATION. 161 

Another discovery was made by the Judiciary 
Committee in the " Article " which, as recorded in 
his diary, Booth had left behind him for publication 
in the National Intelligencer. John Matthews, a 
fellow actor and an intimate friend of the assassin, 
testified that on the afternoon of the 14th of April 
Booth had met him in the street and left with him 
a letter directed to that newspaper, to be delivered 
in the morning. The witness was on the stage of 
the theatre that night at the time the fatal shot was 
fired, and, in the confusion that followed, he called 
to mind the communication. Hurrying to his lodg- 
ings he opened' the envelope, read the letter, and, 
fearing to be compromised by the possession of such 
a document, burnt it wp. The substance of the 
letter, as near as Matthews could recollect, was that 
for a long time he (Booth) had devoted his money, 
time and energies to the accomplishment of an end, 
but had been baflfled. " The moment has at length 
arrived when my plans must be changed. The 
world may censure me for what I do ; but I am 
sure that posterity will justify me.^' And the 
communication was signed (all the names being in 
the hand-writing of Booth): "Men who love their 
country better than gold or life. J. W. Booth, 
Payne, Atzerodt, Herold.^' 

The significance of this piece of testimony was 
negative. The name of Surratt was not there. 

One suggestive circumstance was called out in the 
testimony of Secretary Seward and General Eckert. 
11 



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162 MARY E. StJRRATT. 

It appeared that Payne before his trial had talked 
with Greneral Eckert about his motives and move- 
ments in the assault upon the disabled Secretary of 
State, the particulars of which conversation Eckert 
had related to Seward, after the recovery of the 
latter from his wound, and had promised to reduce 
to writing. Among other things, Payne had said 
that he and Booth were in the grounds in front of 
the White House on the night of Tuesday, the 11th 
of April, when Abraham Lincoln made his speech 
of congratulation on the fall of Richmond and the 
surrender of Lee ; and that on that occasion Booth 
tried to persuade him to shoot the President as 
he stood in the window, but that he would take 
no such risk; and that Sooth, turning away, 
remarked: "That is the last speech he will ever 
make." 

Such an incident is consistent only with the 
theory that the assassination plot was concocted at 
the last moment as a forlorn hope, and that, if there 
had been any conspiracy, it was a conspiracy to 
capture. It is easy to see why the Bureau of Mili- 
tary Justice suppressed this testimony also, because, 
although it bears hard upon Payne himself, and 
Herold, and possibly John Surratt, it renders it 
highly improbable that Mrs. Surratt was aware of 
any design to kill. 

Even such a fragmentary review, as the forgoing, 
of the public history of the two years succeeding 
the execution — which any reader may complete, as 



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HER VINDICATION. 163 

well as test, for himself by referring to the Con- 
gressional Globe of that period, to the printed 
reports of the Committee, and to the leading news- 
paper of the day — is sufficient to indicate how the 
general tendency of events, and every event in its 
place, appear to have conspired to the accomplish- 
ment of one result, — ^the setting aside, in the public 
mind, of the verdict of the Military Commission in 
the case of Mrs. Surratt. 

This was not done by a direct assault upon that 
tribunal, or upon its mode of procedure ; not even 
upon the character of the witnesses against the par- 
ticular culprit, nor upon the weakness of the case 
made against her. These points of attack were all 
passed by, and the verdict was taken on the flank. 

The condemnation of the woman was subverted 
by the vrindy so to speak, of passing events. 

The irrepressible conflict between the President 
and the Congress ; the consequent schism in the 
very ranks of the triumphant conquerors ; the 
insane charge against Andrew Johnson of com- 
plicity in a conspiracy against his own life, sup- 
ported by the incredible statements of the very 
witnesses who were responsible for the charge of 
complicity against Jeflferson Davis and others ; the 
final and complete exposure of the fiction of a con- 
spiracy to assassinate, either by the Confederate 
authorities, or anybody else ; and the true, historical 
character of the Assassination of Abraham Lincoln ; 
— all combined to shake the edifice of guilt, which 



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164 MARY E. StJRRATT. 

the Bureau of Military Justice had so carefully 
built up around their helpless victim, upon such an 
aerial foundation. Whilst the gradual abatement 
of that furious uncharitableness, which in the hey- 
day of the war could find nothing not damnable in 
the Southern people, and no secessionist who was 
not morally capable either of murder or of perjury 
in its defense or concealment, was, surely but imper- 
ceptibly, clearing up the general atmosphere of public 
opinion, and thus preparing for the cordial reception 
of such a measure of retributive justice, as Time, 
with his sure revenges, was daily disclosing to be 
more and more inevitable. 

The Milligan decision dissipated the technical 
jurisdiction of the Commission. But lawyers could 
still distinguish, and the hyperloyal could still main- 
tain the essential rightfulness of the verdict. 

But the explosion of the great assassination con- 
spiracy ; the nol-pros. of the awful charge against 
Jefferson Davis, Clement C. Clay, Jacob Thompson, 
and their followers — a crime, which, if capable of 
proof, no government on earth would have dared to 
condone — discredited forever the judgment of the 
Military Commission, reopened wide all questions 
of testimony, of character, of guilt or innocence, 
and summoned the silent and dishonored dead to a 
new and benignant trial. 



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CHAPTER II. 
Reversal upon the Merito. 

THE new trial was in fact at hand. In the 
summer of the year 1867, the interest ex- 
cited by the investigation of the Judiciary Com- 
mittee of the House of Representatives, referred to 
in the last chapter, suddenly became merged into 
the intenser and more widespread interest excited 
by the trial of John H. Surratt in the Criminal 
Court of the District of Columbia. 

Surratt, after escaping from his captors in Italy 
by leaping down a precipice, fled to Malta and 
thence to Alexandria, where, on the 21st of Decem- 
ber, 1866, he was recaptured and taken on board 
the United States vessel "Swatara." In this vessel, 
bound hand and foot, the prisoner arrived at Wash- 
ington on the 21st of February following. Thus 
the radicals in Congress, impelled by their growing 
enmity to the President over the reconstruction con- 
test, by scattering abroad sinister intimations that 
the cause of his remissness in bringing to punish- 
ment the accomplices of the convicted assassins was 
fear for himself of a full investigation of the assas- 
sination, succeeded at last in forcing the Executive 

165 



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MARY E. SURRATT. 

Department, apprehensive, as it had good reason to 
be, of the shadows which any future trial in the 
civil courts was likely to reflect back upon the 
Military Commission, and aware of the breaking 
down of the case against the Canadian confederates 
and Jeflcrson Davis, face to face with the necessity 
of ratifying the conviction of the mother by securing 
the conviction of the son. On the one hand, the 
radicals, in blind ignorance of the true inwardness 
of affairs, clamored for the trial, in the hope that 
the guilt of the prisoner's supposed accomplices, 
Davis and Company, and possibly of the President 
himself, might be detected. On the other hand, the 
administration, now that the man had been forced 
upon its hands, knowing the futility of the hope of 
its enemies, pushed on the trial in the hope that, 
with its powerful appliances, a result could be 
obtained which would vindicate the verdict of the 
Military Commission. No one on either side, how- 
ever, so much as dreamed of renewing the iniquity 
of a trial by court-martial. Amid the silence of 
the Holts and the Binghams and the Stantons, 8ur- 
ratt was duly indicted by a grand jury for the 
murder of " one Abraham Lincoln," and for con- 
spiring with Booth, Payne, Atzerodt, Herold and 
Mary E. Surratt to murder "one Abraham Lin- 
coln," which conspiracy was executed by Booth. 
There was no averment about the traitorous con- 
spiracy to murder the heads of Government, in 
aid of the rebellion ; nor were the names of Dr. 



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HER VINDICATION. 167 

Mudd, (yLaughlin, Arnold or Spangler, then 
undergoing punishment on the Dry Tortugas, in- 
serted as parties to the conspiracy; nor was any 
mention made of Seward or Johnson or Grant, as 
among the contemplated victims. All was precise 
and perspicacious, as is required in pleadings in the 
civil courts. The loose, vague, indefinite and 
impalpable charges permissible, seemingly, on mili- 
tary trials, gave place to plain and simple allega- 
tions, such as an accused person might reasonably 
be expected to be able to meet. On Monday, June 
10, 1867, while the investigation before the Judiciary 
Committee of the House was still going on, while 
the sensation produced by the sight of Booth's diary 
and by Matthews' disclosures was still fresh, while 
the echoes of the encounter of Bingham and Butler 
still lingered in the air, the momentous trial came 
on. Great and unprecedented preparations had 
been made by the prosecution. Again the country 
was ransacked for witnesses, as in the palmy days 
of Baker and his men. Again the Montgomeries 
and other Canada spies haunted the precincts of the 
District Attorney's office, willing as ever to swear 
to anything necessary to make out the case for the 
prosecution. Even the voice of Conover was heard, 
de prqfundis clamavi^ from his dungeon cell. The 
Bureau of Military Justice started into active life, 
and Holt and his satellites bestirred themselves as 
though fully conscious of the impending crisis. 
Indeed, every one of these officials, from the Presi- 



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168 MARY E. SURRATT. 

dent and the Secretary of War down to the meanest 
informer and hired hangman, who had had anything 
to do with the trial and execution of Mary E. Sur- 
ratt, felt as if he, too, was to be put on trial in the 
trial of her son. A Court recognized in, and draw- 
ing its life and jurisdiction from, the Constitution 
was to act as a court of appeal to review the pro- 
cess and judgment of that extra-constitutional 
tribunal, which had, summarily and without legal 
warrant, put a free American woman to a felon's 
death. A Daniel in the shape of a jury — ^a com- 
mon law jury — a jury of civilians — unadorned by 
sword, epaulette or plume — a jury guaranteed by 
the Bill of Rights — a Daniel had come to judgment! 
The Shylocks of the days of arbitrary power 
dropped their sharpened knives and ejaculated, " Is 
that the law?" 

Great, assuredly, must have been the flurry of the 
once omnipotent Bureau, when it was ascertained 
that the tribunal before which it must come could 
not be "organized to convict;" that there could be 
no soldiery around the Court, no shackles on the 
prisoners or the witnesses for the defense, no prose- 
cuting officers in the jury room. Everything must 
be done decently and in order, with the same calm 
dignity, unruffled composure, the same presumption 
of the innocence of the accused, as though the mur- 
dered man had been the humblest citizen of the 
land. One great advantage, however, the prosecu- 
tion managed to secure. A Judge was selected to 



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HER VINDICATION. 169 

preside whom they could rely on, as " organized to 
convict." But this was the sole reminiscence of 
the unbridled reign of the military only two years 
before. A jury of twelve intelligent men, some of 
them the best citizens of the District, was speedily 
obtained to the evident satisfaction of both the 
people and the prisoner, — and the succeeding Mon- 
day, the 17th, the struggle began. 

As we have given the names of the members of 
the Court which tried the mother, we may be par- 
doned for giving the names of the jurors who tried 
the son. Although there were no major-generals 
among them, they are entitled to the honor of being 
within, and not without, the SBgis of the Consti- 
tution. 

The jurors were W. B. Todd, Robert Ball, J. 
Russell Barr, Thomas Berry, George A. Bohrer, C. 
G. Schneider, James Y. Davis, Columbus Alex- 
ander, William McLean, Benjamin Morsell, B. E. 
Gittings, W. W. Birth. 

They were thus spoken of by the District Attor- 
ney: 

'* It is a matter of mutual congratulation that a 
jury has been selected agreeable to both parties ; the 
representatives of the wealth, the intelligence, and 
the commercial and business character of this com- 
munity; gentlemen against whose character there 
cannot be a whisper of suspicion. I would trust 
you with my life and my honor ; and I will trust 
you with the honor of my country." 



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170 MAKY E. SURRATT. 

The scene which the court-room presented, when 
the Assistant District Attorney arose to open the 
case for the United States, afforded a speaking con- 
trast to the scene presented at the opening of the 
Military Commission. The Court was not held in 
a prison, and there was an entire absence of the 
insignia of war. The doors of the court-room were 
wide open to the entrance of the public, not locked 
up in sullen suspicion, and the keys in the hands of 
the prosecuting ofl&cer. The counsel for the prisoner 
confronted the jury and the witness-stand upon an 
equal line with the counsel for the United States ; 
and there was neither heard, seen, nor surmised, in 
the words or bearing of Edwards Pierrepont, the 
leading counsel for the prosecution, any of the inso- 
lence and supercilious condescension shown in the 
words and bearing of John A. Bingham. 

As the prisoner entered the court and advanced 
to the bar, no clank of fetters jarred upon the ear ; 
and, as he sat at his ease by the side of his counsel, 
like a man presumed to be innocent, the recollection 
of that wan group of culprits, loaded down with 
iron, as they crouched before their imperious dooms- 
men, must have aroused a righteous wrath over the 
barbarous procedure of the military, in comparison 
with the benign rules of the civil, tribunals. The 
atmosphere surrounding the court and the trial 
seemed, also, to be free from passion and prejudice, 
when contrasted with the tremendous excitement 
and the thirst for blood, which permeated the sur- 



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HER VmDICATION. 171 

roundings of the Military Commission. Although 
the Bureau of Military Justice had busied itself in 
the prosecution, and thrust its aid on the office of 
the District Attorney ; although the whole weight 
of the federal administration was thrown in the 
same direction to vindicate, if possible, the signature 
of the President to the death warrant of the victims 
of his military court ; and notwithstanding the pres- 
ence upon the bench of a judge " organized to con- 
vict : ^' still, so repellant to partial passion were the 
precincts of what might fitly be styled a temple of 
justice, a neutral spectator might feel reliance that 
in that chamber innocence was safe. 

But there was one sentiment hovering over the 
trial and dwelling in all bosoms, which clothed the 
proceedings with a peculiar awfulness. All felt 
that the dead mother was on trial with the living 
son. She had been executed two years before for 
the same crime with which he was now charged. 
And, as he stood in the flesh, with upraised hand, 
looking at the jury which held his life in its hands, 
it required no great effort of fancy to body forth the 
image of his mother, standing beside him, murmur- 
ing from shadowy lips the plea of not guilty, amid 
the feeble repetitions of which, to her priest, she had 
died upon the scaffold. To convict her son, now, 
by the unanimous verdict of twelve men, and punish 
him according to law, would go far to condone the 
unconstitutional trial and illegal execution of the 
mother. Whereas, on the other hand, the acquittal 



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172 MARY E. 8URRATT. 

of her son of the same crime, by the constitutional 
tribunals of the country, would forever brand the 
acts of the Military Commission as murder under 
the forms of military rule. This dread alternative 
met the prosecution at the threshold of the trial, 
oppressed them with its increasing weight during 
its progress, and tarried with them even at its close. 
It appeared in the indictment, where the name of 
the mother, as one of the conspirators, was associated 
with the name of her son. It appeared in the 
examination of the jurors, when Judge Pierrepont 
endeavored to extract from them whether they had 
formed or expressed an opinion as to the guilt or 
the innocence of the prisoner, not only, but also as 
to the guilt or the innocence of his mother. It 
appeared during the taking of testimony, where 
evidence bearing upon the guilt of Mrs. Surratt 
alone was admitted at all times as evidence against 
her son. It appeared in the argument of the 
District Attorney, when he compares the mother 
of the prisoner to Herodias and Lucrezia Borgia, 
and "traces her connection with the crime'' and 
" leaves it to the jury to say whether she was guilty ;'' 
where he pleads, like Antony, in behalf of the mem- 
bers of the Military Commission that they were "all 
honorable men," and were not to be blamed for obey- 
ing the orders of the President. It appeared in the 
arguments of the counsel for the prisoner, when Mr. 
Merrick taunted the Government that they were 
pressing for a verdict to " vindicate the fearful action 



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HER VINDICATION. 173 

they had committed ; " when he appealed to the jury 
to " deal fairly by this young man/' ** even if the 
reputation of Joseph Holt should not have the vin- 
dication of innocent blood ; '' when he invoked the 
spirit of Mrs. Surratt as a witness for her son, and 
rebuked the prosecution for objecting to the admis- 
sion of her dying declaration when they were put- 
ting her again on trial though dead; when Mr. 
Bradley charged that for four weeks and more they 
had been trying Mrs. Surratt and not her son, and 
denounced Weichman and Lloyd, avowing that 
" the proof against her was not suflBcient to have 
hung a dog " and was " rotten to the core.'' It ap- 
peared in the speech of Judge Pierrepont, when he 
flourished the record of the .Military Commission 
before the jury, and asserted that the recommenda- 
tion of Mrs. Surratt to mercy was attached to it ; 
in his avowal of his belief in her guilt; in his 
extolling the jury as a tribunal far more fit for the 
trial of such crimes than any military court; and 
in his covert threat that the people would punish 
the City of Washington by the removal of the Cap- 
itol, if the jury, by their verdict, did not come up to 
the high standard erected for them. And, lastly, it 
appeared in the charge of the Judge, which is a 
model of what a one-sided charge ought to be. 
It opens with the words of the Old Testament: 
"Whoso sheddeth man's blood, by man shall his 
blood be shed." Then follows a sneer at the " sen- 
timental philosophers," who were opposed to capital 



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174 MARY B. SURRATT. 

punishment. Then the Court inveighs against some 
imaginary advocates, who argued that to kill a king 
was a greater crime than to kill a president; and 
then casts an imputation upon the integrity of the 
decision in the Milligan Case, as " predicated upon 
a misapprehension of historic truth," and that there- 
fore " we could not perhaps have looked for a more 
rightful deduction," "all loyal hearts" being " un- 
prepared for such an announcement." The Judge, 
then, holds that the Court will take judicial cogni- 
zance that the crime charged was the murder of the 
President of the United States, and a more heinous 
offense than the murder of a simple individual. 
He, then, complacently sets aside the rule of Sir 
Matthew Hale, implicitly followed since, as he 
himself admits, by "writers and judges seeming 
contented with his reasons or indisposed to depart 
from his principles," as "not very satisfactory to 
my (the Judge's) mind;" and accordingly he de- 
clares that, in felonies of such high grade, as in 
cases of treason, there can be no accessories before 
the fact, but all are principals; and, to support this 
conclusion, he then cites and details at length two 
cases, apparently overruling Sir Matthew before- 
hand ; (as he says) " reported in that book of highest 
authority known among Christian nations, decided 
by a judge from whose decision there can be no 
appeal and before whose solemn tribunal all judges 
and jurors will in the great day have their verdict 
and judgments passed in review." One, the case 



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HER VINDICATION. 175 

" of Naboth and Ahab, contained in the 21st chap- 
ter of the First Book of Kings," the other) " that 
of David and Uriah, recorded in the 11th chapter 
of Second Samuel ; " at the end of the statement of 
which case the Judge remarks, "this judgment of 
the Lord was not that David was accessory before 
the fact of this murder, but was guilty as the prin- 
cipal, because he procured the murder to be done. 
It was a judgment to the effect that he who does an 
act by another does it himself, whether it be a civil 
or a criminal act.'' This extraordinary deliverance 
closes with an echo of Judge Pierrepont's warning 
to the jury, to uphold by their verdict the District 
of Columbia, as a place for " the public servants, 
commissioned by the people of the nation, to do 
their work safe and sacred from the presence of 
unpunished assassins within its borders." 

It would be foreign to our purpose, as well as 
tedious to the reader, to examine in detail the testi- 
mony given on this trial. One conclusion — and 
that is the important thing — is certain. It is true, 
beyond the shadow of a doubt, that the prosecution 
made an incomparably stronger case against Surratt 
than was made against his mother. They had but 
one culprit at whom to direct their aim, and they 
made a far more desperate and thorough-going 
effort to convict, because of the known unreliability 
of a jury to do what the prosecution might tell 
them to do without the aid of proof. Before a 
Military Commission, tossed about by the passions 



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176 MARY E. SURRATT. 

of its members and steered by Judge- Advocates, the 
accusers could afford to be careless of gaps in their 
scheme of proof, missing links in the chain of cir- 
cumstantial evidence. Not so now and here. 
Vehement affirmation without evidence availed 
nothing. Curses against treason, traitors, disloy- 
alty, apostrophes to the imperiled Union, tears over 
the beloved Commander-in-Chief, could fill no void 
in the testimony. Of course, there was no such 
outrage against not only the elementary rules of 
evidence, but against ordinary decent fairness, as an 
attempt to introduce testimony of the horrors of 
Libby Prison and Andersonville ; but the door 
looking in that direction was opened as wide as 
possible by the eager Judge. All the material tes- 
timony given upon the " Conspiracy Trial '^ against 
Mrs. Surratt, not only, but also against Payne, 
Herold, Atzerodt, Arnold and O'Laughlin, was 
reproduced here. The direct testimony on the part 
of the United States occupied from June 17th to 
July 5th, and in that period eighty-five witnesses 
were examined. On the Conspiracy Trial, the 
direct case consumed the time from May 12th to 
May 25th, and about one hundred and thirty wit- 
nesses were examined against the eight accused per- 
sons, not only, but also against the eight accessories, 
headed by Jefferson Davis, included in the charge, 
the testimony ranging over the whole rebellion and 
including Libby, Andersonville, Canada, St. Albans, 
and projected raids on New York, Washington and 



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HER VINDICATION. 177 

other cities. Every witness, whose testimony on 
the former trial had the remotest bearing upon the 
question of the guilt or innocence of Mrs. Surratt, 
once more showed his face and retold his story. 

Lloyd was there, compelled, despite his supersti- 
tious reluctance to speak against a woman now she 
was dead, to rehearse the tale which his terrors had 
evolved out of his drunken imagination. This 
time, however, his sottish memory or failure of 
memory, his fright at the time of his arrest, his 
repeated denials of the visit of Booth and Herold, 
his temptations and bribes to accuse his landlady, 
were, under the keen cross-examination of the counsel 
for the prisoner, fully exposed. 

Weichman ^*came also:'^ this time with his story 
carefully elaborated, touched and retouched here 
and there, and written down beforehand. He had 
been engaged for three or four months in aiding the 
prosecution, had prepared a carefully detailed state- 
ment for the use of the Assistant District Attorney, 
and now openly acknowledged that " his character 
was at stake " in this trial, and that he *^ intended 
to do all he could to help the prosecution." He 
had conned over and over again the report of his 
evidence on the Conspiracy Trial, had corrected it 
to meet objections subsequently made and to elimi- 
nate discrepancies and contradictions, and had thus 
brought its several disjointed parts into some logical 
sequence ; he then had added to it the incidents and 
conversations disclosed for the first time in the 
12 



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178 MARY E. SURRATT. 

affidavit sent to Colonel Burnett, which w^ 
appended tx) the published report of the trial, to 
which allusion has been made; and, now, in the 
final delivery of his deadly charge, coolly averring 
that his memory was much more distinct now than 
at the time of the former trial two years ago, he, 
with a superadded concentrated venom, flavored his 
narrative with a few damning incidents never heard 
of before — one, the most poisonous of all, that on 
the evening of the fatal 14th, while Booth was 
about his murderous work, Mrs. Surratt was pacing 
her parlor floor begging her pious boarder ^^ to pray 
for her intentions." This time, however, the wit- 
ness did not escape unscathed. When he emerged 
from the skillful hands of Mr. Bradley, his malicious 
and sordid animus laid bare, — his self-contradictions, 
his studied revisions, his purposeful additions to his 
testimony, exposed — his intimacy with the conspira- 
tors, his terrified repentance, his abject self-surrender 
and his cowardly eagerness to shift his peril upon 
the head of his protectress, — ^and then his simulated 
remorse and his later recantation — all made clear — 
he was an object of loathing to gentlemen ; a 
Stumbling block to the philanthropist ; to the indif- 
ferent, an enigma ; and to the common man, a per- 
petual provocation to a breach of the peace. 

Twelve witnesses testified that they saw John H. 
Surratt in Washington on the 14th of April, only 
one of whom had testified to that efiect on the other 
trial. It is curious now to discern how the memory 



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HER VINDICATION. 179 

of the witnesses, it may be unconsciously, swerved 
under pressure toward the mark of identification. 
The witnesses for the defense established that the 
prisoner was in Elmira on the afternoon of the 13th, 
made it more than probable he was there on the 
14th, and almost certain he was there on the 15th. 
The prosecution, under the force of this proof, sud- 
denly conceded his presence in Elmira on the 13th, 
and then, by the accident of a special train and the 
testimony of a ferryman whom the notorious Mont- 
gomery unearthed in the very crisis of the emer- 
gency, contrived with much straining to land him 
in Washington at 10 o'clock on the morning of tlie 
fatal day. Any calm observer, reading the account 
of the trial now, can see plainly that the truth is, 
the prisoner had not been in Washington since the 
3rd of April. 

The production of Booth's diary by the prose- 
cuting officers was forced upon them by the popular 
indignation over its suppression before the Military 
Commission ; otherwise, it is clear they would not 
have been guilty of such a mistake in tactics as its 
introduction as a part of the case for the United 
States. Its opening sentences — "Until to-day 
nothing was ever thought of sacrificing to our 
country's wrongs. For six months we had worked 
to capture. But our cause Jbeing almost lost some- 
thing decisive and great must be done " — settled the 
question of a plot to kidnap suddenly given up; 



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180 MARY E. SURRATT. 

and the testimony of Weichman indicated the hour 
of abandonment. 

That every conceivable effort to obtain the con- 
viction of the prisoner was made, and that a most 
formidable array of circumstances was marshalled 
against him, compared to which the two discon- 
nected pieces of evidence which were so magnified 
against his mother seem weak indeed, will be con- 
troverted by no sane person. From June 10th to 
August 7th — nearly two months — the contest went 
on. On the last-mentioned day, which was Wednes- 
day, Judge Fisher delivered his remarkable charge, 
and a little before noon the jury retired. At one 
o'clock in the afternoon of Saturday, the 10th, after 
a session of three days and three nights, a commu- 
nication was received from the jury to the effect 
that they stood as at first, nearly equally divided, 
that they could not possibly agree, and the health 
of several of their numbers was becoming seriously 
impaired. The Court, notwithstanding the protest 
of the prisoner, discharged the jury, and the pris- 
oner was remanded to jail. 

There he did not long remain, however. Every 
one recognized the futility of another trial. The 
strength of the proof of the prisoner's presence in 
Elmira on the day of the assassination wrought a 
reaction of public opinion in his favor. The admin- 
istration was glad to escape with less than an une- 
quivocal condemnation. The Bureau of Military 



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HER VINDICATION. 181 

Justice was silent. John H. Surratt was quietly 
let go. 

This obscure occurrence, the discharge of John 
H. Surratt, which caused not a ripple on the surface 
of human affairs, nevertheless constituted a cardinal 
event; for it worked a national estoppel. When 
that young man stepped forth from the threshold of 
the prison, to which the United States had brought 
him in irons from Egypt across the Mediterranean 
and the Atlantic, not to follow his mother to the 
scaffold and a felon's grave, but to walk the earth a 
living, free man, — the innocence of the mother was 
finally and forever established by the universal 
acknowledgment of all fair men. No condemna- 
tion of the Military Commission could be so heavy, 
and at the same time so indubitably final, as the 
simultaneous conviction arrived at by all men, that 
if the son had been tried by such a tribunal he 
would assuredly have been put to death, and that if 
the mother had been reserved to calmer times and 
the tribunal guaranteed by the Constitution to every 
man and woman, she would now have been living 
with her daughter, instead of lying, strangled to 
death, beneath the pavement of a prison. 



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CHAPTER III. 
The Recommendation to Mercy. 

THE worst was still behind. 
It was left to Time to disclose the astound- 
ing fact, that all the military machinery of the War 
Department, its Bureaus, its Court, its Judge- 
Advocates, its unconstitutional, anti-constitutional 
and extra-constitutional processes, would not have 
compassed the death of this helpless woman, had 
not the prosecutors, in the last extremity, called in 
the help of Fraud. 

It has been narrated in the chronological order of 
events, how five members of the Military Commis- 
sion were, in all probability, beguiled into the abdi- 
cation of their own power of commutation and did, 
as matter of fact, sign a paper *' praying'' the 
President, " if he could find it consistent with his 
sense of duty to the country," to commute the 
death sentence of Mrs. Surratt ; how that the paper 
may have been carried to the President by Judge 
Holt and have been present at the confidential inter- 
view when the death warrant was composed ; and 
how that Judge Holt, in drafting the death warrant, 
went out of his way to so write it out, as in fact, if 
182 



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HER VINDICATION. 183 

not by design, to withdraw from the eye of the 
President, as he signed it, this paper praying him to 
withhold his signature. 

But it should Jbe borne in mind that all this was 
shrouded in the deepest secrecy. That there had 
been any hesitation among the members of the 
Commission in fixing the sentence of Mrs. Surratt — 
any more than in the cases of Herold, Atzerodt and 
Payne — much more that it had been found necessary 
to resort to a petition to the President, was entirely 
unknown to the public at large. As to what had 
taken place in the sessions of the Court when the 
sentences were made up, every member thereof and 
the three Judge- Advocates were sworn to secrecy ; 
and, outside these officers, Jihe knowledge of the 
petition was confined to the Secretary of War (pos- 
sibly the Attorney-General) and one or two subordi- 
nates in the War Department. The record of the 
findings and sentences, to which the petition was 
attached, was kept from the official reporters, and 
not a soul outside a close coterie in the War Depart- 
ment was allowed to set eyes on it. 

In the recital of the death sentences in the order 
of the Adjutant-General directing their execution, 
the sentence of the woman diflFered in no respect 
from the three sentences of the men which preceded 
it. So far as the public eye could discover, there 
was not a gleam of mercy for the woman in the 
bosom of the Commission. 



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184 MARY E. SURRATT. 

R is true, that even before the execution there 
were rumors that the Court had united in a recom- 
mendation to mercy, and it was stated in the news- 
papers of the 6th and 7th of July tjiat five members 
of the Commission had signed such a recommenda- 
tion and the whole Court concurred in it. It is also 
certain, that almost immediately after the execution 
the story sprang up that the President had never 
been allowed to see the recommendation which the 
Court had addressed to him. 

But all these statements remained without cor- 
roboration from any authentic source, and could not 
stand before the indubitable facts of the sentence, 
its approval by the President, and its summary exe- 
cution. The single indication that in all these 
reports the paper is miscalled " a recommendation 
to mercy" shows of itself that the real nature of 
the secret was well kept. 

In November, 1865, there appeared a volume 
compiled by Benn Pitman styled " The Recorder to 
the Commission,'' claiming to be "An authentic 
record of the* trial of the assassins of the late 
President,'' to which was prefixed a certificate " to 
its faithfulness and accuracy " by Colonel Burnett, 
who had been assigned by Judge Holt to superin- 
tend the compilation and " made responsible for its 
strict accuracy." This work, so authenticated, was 
on its face intended by its compiler to be a complete 
history " for future use and reference " of the pro- 
ceedings of the Commission, from the order of the 



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HER VINDICATION. 185 

President convening it to the approval of the 
President of its findings and sentences. It had for 
frontispiece portraits of the conspirators and a map 
of portions of Maryland and Virginia showing the 
route of Booth, and for afterpiece a diagram of the 
stage of Ford\s theatre and a diagram of the streets 
in its vicinity. Beside matter strictly of record, 
such as the testimony and the findings and sen- 
tences, it included the arguments of all the counsel, 
the approval of the President, the order changing 
the place of imprisonment from Albany to the Dry 
Tortugas, the proceedings under the writ of habeas 
corpus in the case of Mrs. Surratt; and (in the 
appendix) the opinion of Attorney-General Speed ; 
army instructions in ten sections ; a proclamation of 
President Lincoln ; a poisonous afiidavit of Weich- 
man, inclosed in a letter to Colonel Burnett ; and 
an aflSdavit of Captain Button, who took Dr. Mudd 
to the Dry Tortugas, giving the confessions the 
Captain swears the Doctor made on the way, sent to 
General Holt in obedience to his request for such 
information. Nevertheless, amid all this wealth of 
illustration, there is not the faintest allusion to any 
such thing as a recommendation to mercy, in the 
volume. On the one hand, Pittman may not have 
seen the papsr. His findings and sentences are 
obviously taken from the order of the Adjutant- 
General, and not from the original record, as he 
puts them in the same order, which is not tile order 
of the record. But, if he never saw the paper, it 



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186 MARY E. SURRATT. 

must have been purposely kept from his knowledge, 
and thus from the knowledge of the public, by 
some person interested in its suppression. And 
Colonel Burnett, who had himself attached the 
paper " at the end " of the record, instead of certi- 
fying to the " faithfulness and accuracy '' of a com- 
pilation omitting it, ought rather to have insisted 
that so important and interesting a document, about 
the existence of which so much talk had arisen, be 
at last given to the world. 

On the other hand, if Pitman knew of the paper, 
he certainly would not have voluntarily left it out 
of his book for the reason, he himself felt con- 
strained afterwards to assign, that "it formed no 
part of the proceedings, was not mentioned in open 
session ; " since he had given room to so much mat- 
ter, not of record, solely for the purpose of adding 
interest and completeness to his work, and this crit- 
ical document could add so much to the one and its 
absence detract so much from the other. 

Moreover, in December, the report of the Judge- 
Advocate-General to the Secretary of War appeared, 
in which the trial was reviewed, and to which the 
report to the President, dated July 5th, 1865, was 
appended. But in both the existence of the petition 
was ignored. 

Whatever may have been the true inwardness of 
these significant omissions, their inevitable effect was 
to confince the mass of the people of the non- 
existence of a recommendation to mercy ; and the 



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HER VINDICATION. 187 

petition of the five officers might have reposed in 
silence in the secret archives of the War Depart- 
ment, had it not been for the alienation of the Pres- 
ident from the party which had elected him, his 
gradual gravitation towards his own section, and 
finally his revolt from the sway of Stanton. During 
this period, the rumors that the Court had recom- 
mended Mrs. Surratt to the clemency of the Exec- 
utive and that the paper had never reached the 
Executive, coupled with stories that from the close 
of the trial to the hour of the execution the Presi- 
dent had been kept under confinement and in a state 
of semi-stupefaction by a band of reckless partisans 
who were bound there should be no clemency, grew 
louder and louder. But they were never traceable 
to any reliable source. In fact, the coolness which 
had been for a long time growing between Andrew 
Johnson and Edwin M. Stanton did not break out 
into an open rupture until as late as the month of 
March, 1867. The other members of the Cabinet, 
which Johnson had inherited from Lincoln, who 
disagreed with Johnson on the question of Recon- 
struction, Harlan, Dennison and Speed, resigned, on 
account of that disagreement, in the summer of 1866 ; 
but Stanton stayed on. When the Tenure of Office 
bill was passed by the Congress in February, 1867, 
the Secretary of War was still so much in a^^cord 
with the President as to unite with the other mem- 
bers of the reconstructed Cabinet in an emphatic 
condemnation of the bill as unconstitutional, and 



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188 MARY E. SURRATT. 

to be asked by the President to draft his veto 



But, on the passage of that Act over the veto, 
Stanton, thinking his tenure of oflSce secure, at last 
threw off the double-faced mask he seems to have 
worn in every dabinet to which he ever had the 
honor to belong. From that time he stood alone in 
the Cabinet, irreconcilable in his hostility to every 
move of his Chief, in open league with his Chiefs 
active enemies, and determined to remain where he 
was not wanted and could only act as a hindrance 
and a spy. In this perilous state of affairs, a secret 
like that of the petition of the five officers burned 
towards disclosure. Yet, so far as is at present 
ascertainable, no authoritative affirmation of the 
existence of such a paper, on the one hand, and no 
authoritative denial that it had been presented to 
the President, on the other, had yet been made. 

Upon such an arrangement of combustible mate- 
rial, the trial of John H. Surratt acted like a spark 
of fire. 

On the second day (June 11th, 1867), during the 
impanelling of the jury, Mr. Pierrepont, the leading 
counsel for the United States, alluding to the rumors 
then flying about, took occasion to predict that the 
Government on that trial would set all these false 
stories at rest. 

Among other things he said : 

'*It has likewise been circulated through all the public 
journals that after the former convictions, when jin effort was 



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HER VINDICATION. 189 

made to go to the President for pardon, men active here at the 
seat of government prevented any attempt being made or the 
President being even reached for the purpose of seeing whether 
he would not exercise clemency ; whereas the truth, and the 
truth of the record which will' be presented in this court, is 
that all this matter was brought before the President and pre- 
sented to a full Cabinet meeting, where it was thoroughly dis- 
cussed ; and after such discussion, condemnation and execution 
received not only the sanction of the President but that of 
every member of his Cabinet." 

The testimony in the case closed, however, and 
the summing up began, and there had been no 
attempt at a fulfillment of this prediction. 

On Thursday afternoon, August 1st, Mr. Mer- 
rick, the junior counsel for the prisoner, then near- 
ing the close of his address, twitted the prosecution 
with this breach of its promise in these words : 

** Where is your record ? Why didn't you bring it in ? Did 
you find at the end of the record a recommendation to mercy 
in the case of Mrs. Surratt that the President never saw? 
You had the record here in Court. 

" Mr. Bradley : And oflfered it once and withdrew it ? 

" Mr. Merrick : Yes, sir ; oflfered it and then withdrew it. 
. " Did you find anything at the close of it that you did not 
like ? Why didn't you put that record in evidence, and let us 
have it here?" 

Stung by the .necessity of making some answer 
to this defiant challenge, Mr. Pierrepont on the 
moment sent for the record. And in response to 
the summons, Judge-Advocate Holt, who naturally 
must have followed the prosecution and trial with 
the most absorbing anxiety, on that very afternoon 



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190 MARY E. SURE ATT. 

brought the record "with his own hand," ^'with 
his own voice'' told its history, in the presence of 
"three gentlemen," to Mr. Pierrepont, and then 
left the papers with him. 

On the succeeding day, August 2nd, Mr. Brad- 
ley, the senior counsel of the prisoner, renewed the 
attack : 

" It was boastfully said in the opening of this case that they 
would vindicate the conduct of the law officers of the Govern- 
ment engaged in the conspiracy trials. They would produce 
Booth's diary ; they would show that the judgment of the court 
was submitted to the Cabinet and fully approved; that no 
recommendation for mercy for Mrs. Surratt — that no petition 
for pardon to the Government — had been withheld from the 
President. Is it so?" 

The next morning, Saturday, August 3d, Mr. 
Pierrepont began his address to the jury. Having 
kept possession of the record since Thursday after- 
noon, and having been made acquainted with its 
history by Judge- Advocate Holt in such an impres- 
sive manner, he, thus, in his exordium, at last, 
redeemed the promise of the prosecution : 

" The counsel certainly knew when they were talking about 
that tribunal " (t. e. the Military Commission), " and when they 
were thus denouncing it, that President Johnson * * * ordered 
it with his own hand, that President Johnson * * * signed the 
warrant that directed the execution, that President Johnson 
* * * when that record was presented to him, laid it before his 
Cabinet, and that every single member voted to confirm the 
sentence, and that the President with his own hand wrote his 
confirmation of it, and with his own hand signed the warrant. 
I hold in my hand the original record, and no other man as it 



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HER VINDICATION. 191 

appears from that paper ordered it. No other one touched this 
paper, and when it was suggested by some of the members of 
the Commission that in consequence of the age and the sex of 
Mrs. Surratt, it might possibly be well to change her sentence to 
imprisonment for life, he signed the warrant for her death with 
the paper right before his eyes — and there it is (handing the 
paper to Mr. Merrick). My friend can read it for himself." 

This is the first appearance in public of the pre- 
cious record. On Wednesday, July 6th, 1866, 
Andrew Johnson put his name to the death-warrant 
written on its back by Judge Holt. And, now, two 
years after, emerging from its hiding-place, it is 
flung upon a table in a court-room by the counsel 
for the United States. 

Even now it seems to be destined to a most unsat- 
isfactory publication. For the counsel of the pris- 
oner decline to look at it, because (as Mr. Merrick 
subsequently explained), "he mistrusted whatever 
came from the Judge- Advocate-GeneraPs office;" 
because it "had been carefully withheld until all 
opportunity had passed for taking evidence in rela- 
tion to it ; " and because the official report of the 
trial contained no recommendation of mercy. The 
mysterious roll of paper, consequently, lies there 
unopened, until Judge Holt comes to reclaim it that 
same afternoon; and that officer is careful, when 
receiving it back, to repeat over again, before other 
witnesses, the same history of the document, he had 
told before to the counsel for the prosecution, and 
which that counsel had just retold to the jury. 



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192 MARY E. SURRATT. 

But that had been said and done which must 
blow away the atmosphere of unwholesome secrecy 
which had so long enveloped this addendum to the 
record. The explicit declaration of the counsel for 
the United States, made in a crowded court-room on 
so celebrated a trial, with the " identical paper '' in 
his hand, that the President had laid the record 
before his Cabinet and " every single member voted 
to confirm the sentence," and that the President 
had signed the death-warrant with the " suggestion " 
of commutation " right before his eyes," was imme- 
diately published far and wide, and must have been 
read on Sunday, the 4th, or at latest on Monday, 
the 6th, by the President himself. And the Presi- 
dent was certainly astounded. By a most singular 
providence, Judge Holt himself, in a letter written 
to himself, at his request, by his chief clerk, and 
published by him in 1873 for another purpose, has 
furnished independent proof that the President was 
now for the first time startled into sending for the 
record. 

Here is what Chief Clerk Wright says : 

" On the 5th day of August, 1867, Mr. Stanton, the Secre- 
tary of War, sent for me, and in the presence of General Grant 
asked me who was in charge of the Bureau in your absence. I 
informed him Colonel Winthrop. He requested I should send 
him over to him, which I did. The Colonel returned and 
asked me for the findings and sentence of the conspiracy trial, 
telling me he had to take it to the President. On taking the 
portion of the record referred to from the bundle, I found, 
from the frequent handling of it, several of the last leaves had 



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HER VINDICATION. 193 

torn loose from the ribbon fastening, and to secure them I put 
the eyelet in one corner of it." 

The Judge- Advocate-General, though in court on 
Saturday getting back the record and retelling its 
history, was absent, it would appear, from his office 
on Monday, or was considered absent by Stanton, 
who it also appears was still Secretary of War and 
in communication with Johnson. It was thought 
best to employ a deputy to carry the papers to the 
President. Holt, probably, had no stomach for 
another " confidential interview,'' with the identical 
record in his hand. 

Let Andrew Johnson himself tell what followed. 
The statement is from his published reply to Holt 
in 1873, and was made with no reference to, and 
apparently with no recollection of, the foregoing 
incidents of the John H. Surratt trial: 

" Having heard that the petition had been attached to the 
record, I sent for the papers on the 5th day of August, 1867, 
with a view of examining, for the first time, the recommenda- 
tion in the case of Mrs. Surratt. 

" A careful scrutiny convinced me that it was not with the 
record when submitted for my approval, and that I had neither 
before seen nor read it." 

It may have been only a coincidence, but on this 
very day, Monday, August 5th, 1867, and neces- 
sarily after the sending for the record, because that 
was done through the Secretary of War, the follow- 
ing interesting missive was dispatched by the Presi- 
dent to that member of his Cabinet : 
13 



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194 MABY E. SURRATT. 

" Sir : Public considerations of a high character constrain me 
to say that your resignation as Secretary of War will be 
accepted." 

Stanton immediately replied : 

"Public considerations of a high character constrain me not 
to resign before the next meeting of Congress." 

And, on the 12th, he was suspended from office. 

But Andrew Johnson was not the only interested 
personage who read the explicit declaration of Mr. 
Pierrepont. The statement that every member of 
the Cabinet voted to confirm the sentence of Mrs. 
Surratt, with the record, including, of course, the 
recommendation, before them, must have been read 
also by William H. Seward, Edwin M. Stanton, 
Hugh McCuUoch, and Gideon Welles, the members 
of that " full Cabinet '^ who still remained in office. 
They surely knew the truth of the statement, if it 
was true, or its falsity, if it was false. If it was true, 
is it not perfectly inconceivable that the President, 
conscious that these four of his confidential advisers 
had seen the record and voted to deny the petition, 
would have dared to enact the comedy of sending 
for the record, and then brazenly assert that the 
petition had not been attached to it when before 
him, and that he had neither seen nor read it? 

And if he had been guilty of so foolhardy a course 
of action, now was the time for the Judge- Advocate 
to fortify the declaration which he had inspired Mr. 
Pierrepont to make, by appealing to these members 



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HER VINDICATION. 195 

of the Cabinet to confront their shameless chief with 
their united testimony, and forever silence the " atro- 
cious accusation." 

From his course of proceeding at a later day, it is 
not probable that he made any such attempt. At 
all events, he got no help from Seward, from Mc- 
Culloch or from Welles. Nay, he got no help 
to sustain his history of the record, even from 
Stanton. If help came from that quarter at all, it 
was to shield him from the awakened wrath of the 
hood-winked Executive, by drawing the fire upon the 
head of his department. 

But what the Judge-Advocate-General did do, in 
view of the crisis, is sufficiently apparent. He took 
immediate measures to retract all that portion of Mr. 
Pierrepont's declaration of Saturday, which expressed 
or implied any knowledge on the part of the Cabinet 
of the disputed paper. 

The counsel for the United States had continued 
his speech to the jury all day Monday, apparently 
unconscious of the tempestuous effect of his statement 
of Saturday, and of the predicament in which it had 
involved his informant. In the evening, he must 
have had a "confidential interview" with Judge 
Holt. For, on rising to resume his speech on Tues- 
day morning, the 6th of August, from no apparent 
logical cause arising from the course of his argument, 
he saw fit to recur to the now absent record, and to 
interpolate the following perfectly insulated and 
seemingly superfluous piece of information : 



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196 MABY B. SUBRATT. 

** You will recollect, gentlemen, when a call was made sev- 
eral days ago by Mr. Merrick * * asking that we should pro- 
duce the record of the Conspiracy Trial, that I brought the 
original record here and handed it to counsel I then stated 
that as a part of that record was a suggestion made by a part 
of the Court that tried the conspirators, that, if the President 
thought it consistent with his public duty, they would suggest, 
in consideration of the sex and age of one of those condemned, 
that a change might be made in her sentence to imprisonment 
for life. I stated that I had been informed that when that 
record was before the President, and when he signed the war- 
rant of execution, that recommendation was then before him. 
I want no misunderstanding about that, and I do not intend 
there shall be any. That is a part of the original record 
which I here produced in Court. It is in the hand-writing of 
one of the members of that Court, to wit. General Ekin. The 
original of that is now in his possession and in the hand- 
writing of Hon. John A. Bingham. When the counsel called 
for that record', I sent the afternoon of that day to the Judge- 
Advocate-General, in whose possession these records are. He 
brought it to me with his own hand, and told me with his own 
voice, in the presence of three other gentlemen, that that 
identical paper, then a part of the record, was before the 
President when he signed the warrant of execution, and that 
he had a conversation with the President at that time on the 
subject. That is my authority. Subsequently to this, having 
presented it here, the Judge-Advocate-General called to receive 
it back, and reiterated in the presence of other gentlemen the 
same thing. That is my knowledge and that is my authority." 

Here we have, then, the final statement of his 
side of the case, made by Judge Holt, through the 
mouth of counsel, revised and corrected under the 
stress of the occurrences at the White House and 
the negatory attitude of the members of the Cabinet 
present on the spot. Stripped of the all^ation that 



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HER VINDICATION. 197 

the record was laid before the Cabinet and voted 
upon by every member of the Cabinet, its affirma- 
tions, carefully confined to " the confidential inter- 
view " between the President and the Judge- Advo- 
cate, go no farther than that " the identical paper ^^ 
was "before the President,'^ when he signed the 
death warrant, and they had a conversation " on the 
subject/^ 

"He wants no misunderstanding^^ and does "not 
intend there shall be any/' The counsel in great 
detail relates how he came by his facts. " That is 
my knowledge and that is my authority.^' Of 
course it is open to everybody to believe, if he 
choose, that the talk of the Cabinet meeting and of 
the unanimous vote of its members against the 
petition, was a mere rhetorical exaggeration of a 
simple narrative of Holt relating the incidents of 
an interview between the President and himself, 
struck off by Judge Pierrepont in the full fervor of 
his eloquence; but, nevertheless, it remains true 
that the Judge-Advocate, until the catastrophe 
befell, was satisfied it should stand, rhetoric and all ; 
because he " reiterated the same thing'' on Saturday, 
afler the counsel had concluded his statement, and 
on Monday the counsel continued his address all 
day without being advised of the necessity for any 
retraction. 

Be this as it may, there is now, at the last, no 
appeal by the Judge-Advocate to the members of 
the Cabinet, all of whom were living, as witnesses 



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198 MARY B. 8URRATT. 

to tliG President's knowledge of the petition of 
mercy. He abandons hope of corroboration from 
members of the Cabinet, and he takes his stand 
upon the single categorical affirmation, that the 
" identical paper " formed part of the record when 
the record was before the President in 1 865. 

And, singular as it may appear, this is the very 
thing that the President does not categorically deny; 
he only infers the contrary from the appearance of 
the record in 1867. 

The single categorical negation of the President 
is that he neither saw nor read the recommendation. 
And, singular as it may appear, this the Judge- 
Advocate does not categorically affirm ; he leaves it 
to be inferred from his averment of the presence of 
the paper and a conversation on the subject. 

In short, the statements of the two disputants are 
not contradictory. Both may be true. And, when 
we recollect the feeble state of health of the Presi- 
dent at the time of the "confidential interview '^ 
and his mood of mind towards the distasteful task 
forced upon him in a season of nervous debility; 
when we recollect the mode and manner the Judge- 
Advocate adopted of writing out the death warrant ; 
it will seem extremely probable that both statements 
are true. The President made no " careful scrutiny " 
of the record in 1865, or he would not have needed 
to do so in 1867. The Judge-Advocate, inspired 
by his master, would not be too officious in pointing 
out to the listless and uninquiring Executive the 



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HER VINDICATION. 199 

superfluous little paper. He might do his whole 
duty, by conversing on the subject of the commuta- 
tion of the sentence of the one woman condemned, 
and, then, by so placing the roll of papers for the 
President's signature to the death warrant as to 
bring the modest " suggestion '^ of the five officers 
^^ right before Mb eyes," though upside down. If 
the sick President did not carefully scrutinize the 
papers, was that the Judge-Advocate's fault ? Nay, 
in writing out the death warrant in the inspired way 
he did, this zealous patriot may have felt even a 
pious glow, in thus lending himself as an instrument 
to ward off a frustration of Divine justice. Alas ! 
one may easily lose one's self in endeavoring to 
trace out the abnormal vagaries of the "truly 
loyal " mind, at that period of hysterical patriotism. 

After these incidents on the Surratt trial, and at 
the White House, there could be no more mystery 
about the recommendation to mercy. It was his- 
torically certain that such a document, or rather a 
" suggestion,'' did in feet emanate from the Commis- 
sion, and was at some time affixed to the record. 
Left out of Pitman's official compilation, nevertheless 
it was there. The only question about it which could 
any longer agitate the people was, had it been sup- 
pressed? And this, unfortunately, was now narrowed 
down to a mere question of veracity between the 
President and his subordinate officer, as to what 
occurred at the Confidential Interview ; and which. 



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200 MARY E. SURRATT. 

moreover, threatened to resolve itself into a maze of 
special pleading about the lack of attention, on the 
part of the Executive, and the duty of thorough 
explanation, on the part of the Judge- Advocate, in 
the delicate task of approving the judgment of a 
Military Commission. 

Whether this unsatisfactory and ticklish state of 
the issue was the cause or not, nothing was done in 
consequence of these revelations of the Surratt trial. 
The President, indeed, plunged as he was in the 
struggle to get rid of Stanton, which finally led to 
his impeachment, and remembering his own remiss- 
ness in not scrutinizing the papers before he signed 
the death-warrant, could have had but little inclina- 
tion to provoke another conflict, on such precarious 
grounds, by attempting the removal of the incrimi- 
nated subordinate of his rebellious Secretary, He 
kept possession of the record, however, long enough 
to subject it to a thorough inspection by himself and 
his advisers, for (as appears from the letter of the 
chief clerk already quoted) it was not returned to 
the Judge- Advocate-General's office until December, 
1867. 

The Judge-Advocate, on his part, remained like- 
wise passive and displayed no eagerness for a vindi- 
cation by a court of inquiry. 

He pleads in 1873, as excuse for his non-action, 
that " it would have been the very madness of folly '' 
for him " to expose his reputation to the perils of a 
judicial proceeding in which his enemy and slanderer 



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HER VINDICATION. 201 

would play the quadruple role of organizer of the 
court, accuser, witness and final judge." Forgetting 
the " history " he had told Mr. Pierrepont, and then 
withdrawn, in 1867, he actually claims that he " was 
not aware that any member of Mr. Johnson's Cabi- 
net knew of his having seen and considered the 
recommendation," and that he "was kept in pro- 
found ignorance of" " this important information" 
" through the instrumentality of Mr. Stanton " i 

But, were it credible that the Judge- Advocate 
'^ supposed," as he says, " that this information was 
confined to " the President and himself, (not even 
his master, Stanton, knowing anything of the peti- 
tion), even in that case the " perils " of an investiga- 
tion, which he affects to dread, were all on the side of 
his adversary. The necessity for the President of 
the United States, himself, to come forward as the 
one sole witness to his own accusation — especially 
when the charge involved an admission of his own 
delinquency, and was to be met by the loud and 
defiant denial of his arraigned subordinate — was 
enough, of itself, to deter the Chief Magistrate of a 
great nation from descending into so humiliating a 
combat. 

But, to lay no stress upon this consideration, it 
must be manifest to any one acquainted with the 
state of public feeling at the time, that the single, 
uncorroborated testimony of the maligned, distrusted 
Andrew Johnson, branded as a traitor by the tri- 
umphant republican party, on the eve of impeach- 



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202 MARy E. 8URRATT. 

ment, a hostile army under his nominal command, 
Stanton harnessed on his back, unfriendly private 
secretaries j^ervading his apartments, and detectives 
in his bed-chamber ; in support of such a " disloyal" 
charge, disclosing, as it was sure to be asserted, a 
latent remorse for the righteous fate of the she-assas- 
sin; would have been hailed in all military circles 
with derision. The popular, the eminently loyal, 
the politically sound Judge-Advocate, backed by 
Stanton, Bingham and Burnett, by his Bureau and 
his Court, by General Grant and the Army, had 
certainly nothing to fear. 

But, though this hero of so many courts-martial 
appears to have had no mind for a dose of his own 
favorite remedy, he began, in his characteristic secret 
way, to collect testimony corroborative of his version 
of the confidential interview. He writes no letter to 
a single Cabinet officer. But, immediately after the 
close of the John H. Surratt trial (August 24, 1867), 
he writes to General Ekin reminding him of an inter- 
view, soon after the execution, in which he (Holt) 
mentioned that the President had seen the petition ; 
and he obtains from that officer the information he 
sought. In January, 1868, he quietly procures 
from two clerks in his office, letters testifying to the 
condition of the record when it arrived from the 
Commission, when the Judge-Advocate took it to 
carry to the President, and when he brought it back. 
It is needless to say that, though these clerks state 
that the page, on which the petition was written, and 



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HER VINDICATION. 203 

the page, on which the latter portion of the death- 
warrant was written, are " directly face to fac« to 
each other ;'^ they do not notice that, when the death- 
warrant was signed, the page, on which the petition 
was written, must have been, either under the other 
pages of the record, or upside down. 

In this same month, the resolution of the Senate 
refusing to concur in the suspension of Stanton was 
adopted (January 13th, 1868). General Grant, the 
Secretary of War ad intet'im, in violation of his 
promise to the President, as alleged by the latter, 
thereupon surrendered the office to the favorite War- 
Minister, who thus forced himself back among the 
confidential advisers of the President. 

On the 21st of February, the President, with one 
last desperate stroke, removed him from office ; and 
on the 24th, Andrew Johnson was impeached for 
this " high crime.'^ 

In the midst of his troubles, the President finds 
time to pardon Dr. Mudd (Feb. 8th), who soon 
returns to his family and friends. 

The impeachment trial ends May 26th, the Presi- 
dent escaping conviction by but one vote; and 
Stanton at last lets go his hold on the War office. 

In December, 1868, the Judge-Advocate is pri- 
vately seeking testimony from the Rev. J. George 
Butler, of Washington, the minister who attended 
Atzerodt in his last moments, whose letter of the 
15th is most satisfactory on Johnson's belief in the 



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204 MARY B. 8URRATT. 

guilt of Mrs. Surratt, but most unsatisfactory in 
regard to the petition of mercy. 

On the Ist of March, 1869, among the last acts 
of his stormy administration, the President undid, 
as far as he could then undo, the work of the Mili- 
tary Commission by setting Arnold and Spangler 
free ; O'Laughlin having died from the effects of 
the climate. Had the five officers of the Military 
Commission been permitted to exercise their power 
of mitigating the sentence of Mrs. Surratt, as they 
did in the cases of these men, or had the Executive 
granted their prayer for clemency; the President 
might have signalized the close of his term by a 
still more memorable pardon, and the mother, res- 
cued from death by mercy, would have joined the 
son, rescued from death by justice. 

During the four years of the first administration 
of President Grant, while Andrew Johnson was 
fighting his way back to liis old place, among the 
people of Tennessee, the story of the suppressed 
recommendation ever and anon circulated anew with 
unquenchable vitality. The reappearance of Mudd, 
Spangler and Arnold, as free men ; the " doubtful '' 
death of Stanton, "with such mained rites'* of 
burial, as might " betoken 

The corse, they follow, did witli desperate hand 
Fordo its own life ; " 

every incident connected in any way with the 
tragedy of the woman's trial and death, and every 



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HER VINDICATION. 205 

prominent event in the career of the men who had 
surrounded the illstarred successor of the murdered 
Lincoln in the awful hour of his accession, revived 
the irrepressible question ; and the friends of Mrs. 
Surratt's memory, and the friends of Johnson, 
alike, each by their own separate methods, on every 
such opportunity, appealed and re-appealed to the 
public, asserting again and again the suppression of 
the plea for mercy, propagating what General Holt 
brands as " the atrocious accusation," or, as he else- 
where characterizes their actions, "for long years 
wantonly and wickedly assailing" the ex-Judge- 
Advocate. And yet, during all these years, the 
baited hero is silent. He lies low. As far as 
appears, he makes no further efforts to secure testi- 
mony. His friend and old associate, Bingham, is 
by his side, yet he makes no appeal to him. He 
keeps close by him the letters he has already secured 
to substantiate his own version of the confidential 
interview. But he seeks for no Cabinet testimony. 
His stern master in the War Department, after the 
acquittal of the President, lays down his sceptre, 
and then, though the deadliest enemy of Johnson, 
is allowed to die in silence. Seward lives on and is 
asked to give no help. The ex-Judge-Advocate 
still lies low. 

At length came the appointed time. 

William H. Seward died on the 12th day of 
October, 1872. 



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206 MARY E. SURRATT. 

• On the 11th day of February, 1873, Geu. Holt 
makes his appeal for testimony from the oflBcers of 
Johnson's first Cabinet, by letter to John A. Bing- 
ham, requesting him to furnish his recollections of 
the late Stanton and the late Seward. On March 
30th, 1873, he writes to James Speed, Ex-Attorney- 
Greneral, inclosing a copy of Bingham's reply. On 
May 21st, 1873, he writes to James Harlan, Ex- 
Secretary of the Interior, inclosing a copy of Bing- 
ham's reply. In July, 1873, he writes to General 
Mussey, once Johnson's private secretary; and, in 
August, armed with the answers of these corres- 
pondents and with the letters he had gathered in 
1867 and 1868, and unprovoked by any revivifica- 
tion of the old charge, he rushes into the columns of 
the Washington Chronicle with his formidable 
" Vindication." 



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CHAPTER IV. 
The Trial of Joseph Holt. 

ON the threshold of his Vindication, Gen. Holt 
revives the discredited and apparently for- 
gotten declaration made by Mr. Pierrepont on the 
trial of John H. Surratt, and stakes his whole case 
upon the establishment of the truth of the allegation 
that the petition for commutation, attached as it was 
to the record of the findings and sentences of the 
Military Commission, was the subject of considera- 
tion at a meeting of the Cabinet of President Johnson, 
and its prayer rejected with the concurrence of the 
members present at such meeting. 

So long as the contention is limited to what took 
place during that momentous hour between the 
President and himself, " alone," with the light thrown 
upon it by the record including the endorsed death- 
warrant and the affixed paper, he exhibits a certain 
lack of confidence in the strength of his defense. 
For, although he prints the "circumstantial evi- 
dence," as he calls it, to sustain his own version of 
the " confidential interview " (consisting of the two 
letters from his former clerk, heretofore alluded to, 
and the letter from Gen. Mussey saying that the 

207 



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208 MARY E. SURRATT. 

"acting President '' told him of the recommendation 
" about that time "), he confesses it was not until he 
recently had secured certain testimony that the peti- 
tion had been considered by officers of the Cabinet, 
that he at length felt his case strong enough to war- 
rant a public challenge of his adversary, and himself 
justified in submitting it to the public. 

In short, we have a sort of reversal of the position 
of six years before. Then, after having at first put 
forward the assertion that the petition was considered 
by the Cabinet, the Judge- Advocate summarily sup- 
presses that branch of his case, and puts into the 
foreground the explicit asseveration of the identical 
paper being "right before the President's eyes" 
when he signed the death-warrant. " He wants no 
misunderstanding about that." Now, while he keeps 
in mind, it is true, this version of the confidential 
interview, he relegates it to the rear, and constitutes 
the Cabinet consideration the very citadel of his cause. 

As to what takes place at a meeting of the Cabi- 
net, its members of course are the first, if not the 
only, witnesses. And it is a matter of surprise that 
General Holt, so far as is apparent, never, in all 
these past years, applied to any one of them to sub- 
stantiate so essential a part of his vindication. He 
states that he has always been satisfied that the 
matter must have been considered in the Cabinet, 
and adds that " from the confidential character of 
Cabinet deliberations " he has " thus far been denied 
access to this source of information." But he does 



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HER VlNl>ICATIOK. 209 

not say when, or to whom, he applied for such 
"access/' or how he had been " denied/' It is cer- 
tain, from what he says elsewhere, that he never 
applied to Stanton or to Seward; he admits in a 
subsequent communication that he never applied to 
McCulloch, Welles or Dennison; and, from the 
tenor of their letters now in reply to his, it appears 
he never applied before to Harlan or to Speed. 
And these are all the members of the Cabinet of 
President Johnson in July, 1865. Moreover, he 
does not, even now, in 1873, make application in 
the first instance to an ex-Cabinet officer. His first 
application is made to John A. Bingham, his old 
colleague in the prosecution of Mrs. Surratt, for 
Cabinet information in the shape of conversations 
with the two ministers, who, after so many years of 
unsolicited silence in life, are now silent, beyond the 
reach of solicitation, in death. And it is not until 
he has secured the desired information, which he 
would have us believe was entirely unexpected, that 
he is stirred up to the necessity of a public vindi- 
cation of his character; and then he selects the 
two of the surviving ministers of the Cabinet, 
known to be hostile to the ex-President, as the 
objects of solicitation, sending them, as a spur to 
their recollections, the letter containing the reminis- 
cences of his serviceable ally. But, by some fatality, 
the industrious inquirer takes nothing by his some- 
what complicated manoeuvre. The letters he pro- 
duces from Cabinet officers afford him no assistance. 
14 



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210 MARY E. SURRATT. 

Judge Harlan cau recall only an informal discussion 
by three or four members of the Cabinet (Seward, 
Stanton, himself and probably Speed) of the ques- 
tion of the commutation of the sentence of Mrs. 
Snrratt because of her sex ; which, she being the 
one woman under condemnation, would surely 
arise in a tribunal of gentlemen, whether there was 
a recommendation or not, as in fact it did even 
among the stern soldiers of the Military Commis- 
sion. But the writer, who, as Senator from the 
State of Iowa, had voted for the conviction of Presi- 
dent Johnson, makes the positive declaration, that 
" no part of the record of the trial, the decision of 
the court, or the recommendation of clemency was 
at that time or ever at any time read in uiy (his) 
presence." He remembers, with undoubting dis- 
tinctness, inquiring at the time whether the Attorney- 
General had examined the record, and was told that 
the whole case had been carefully examined by the 
Attorney-General and the Secretary of War; and 
he states that the question was never submitted to 
the Cabinet for a formal vote. 

This letter is most significant, both for what it 
says and for what it refrains from saying. Its posi- 
tive statement annihilates the story of a "full Cabi- 
net '^ when " the vote of every member '^ was adverse, 
and indeed of any Cabinet meeting whatever, where 
the paper was present and considered — such a story 
as Judge Pierrepont first gathered from the " voice '^ 
of Holt ; and the absence of all affirmation that the 



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HER VINDICATION. 211 

writer had either seen or heard of the recommenda- 
tion, while he expressly states that it was never read 
in his presence (considering the occasion and object 
of the letter and the bias of the ex-Senator), warrants 
the conclusion that such a document was not men- 
tioned at the informal Cabinet consultation he 
describes. 

In any view, the letter furnishes no support to 
Holt's contention. The writer expressly negatives 
the presence of the record and the paper, and he does 
not affirm that such a petition was alluded to, in 
terms, in the discussion in the presence of the Presi- 
dent ; which he surely would have done, in aid of his 
sorely tried friend, if such had been the fact. 

The Judge-Advocate fares even worse at the hands 
of the Ex- Attorney-General. Here is a man who 
knew, if any other member of the Cabinet except 
Stanton knew, whether the paper in question ever 
came up for discussion before the President in his 
Cabinet. He goes so far as to say that, after the 
findings and before the execution, he saw the paper 
attached to the record "in the President's office;" 
a statement which reminds us of another of the 
same elusive and evasive character, (that the paper 
was " before the President "), and, like that, affirms 
nothing one way or the other as to the consciousness 
of the President of its presence. 

And then he proceeds as follows : 

" I do not feel at liberty to speak of what was 
said at Cabinet meetings. In this I know I differ 



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212 MARY E. 8URRATT. 

from other gentlemen'' (presumably an allusion 
to the Seward and Stanton of Bingham's letter), 
"but feel constrained to follow my own sense of 
propriety." 

His friend's necessity would have been met by 
something less than a repetition of what was said 
at Cabinet meetings. He had only to tell whether 
he saw a certain paper (not in the President's 
office), but at a meeting of the President and his 
advisers, or knew of the recognition there of its 
mere existence ; — a revelation which would not 
have violated the most punctilious sense of official 
propriety ; and he feels constrained to withhold the 
least ray of light upon so simple a question. 

The witness " declines to answer." 

Ten years after the present controversy, Judge 
Holt, feeling acutely this weak point in his vindica- 
tion, again appeals to Speed, in the most moving 
tones, to break his unaccountable silence and rescue 
his friend's gray head from " the atrocious accusa- 
tion," "known to him to be false in its every 
intendment," with which that perfidious monster, 
dead now eight years, and, (as Holt significantly 
quotes), "gone to his own place," sought "to blacken 
the reputation of a subordinate officer holding a con- 
fidential interview with him." 

And, strange to say, Speed first neglects even to 
reply to Holt's repeated communications for six 
months, and then just opens his lips to whisper, "I 
cannot say more than I have said." He had ofiFered 



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HER VINDICATION. 213 

in private (if we may credit Holt) to write a letter 
to his aggrieved friend, giving him the desired 
information, " but not to be used until after Holt's 
death ; " a proposition quite naturally discouraged 
by Holt, who made this sensible reply: "that a 
letter thus strangely withheld from the public would 
not, when it appeared, be credited." 

But, when repeatedly implored to spread "the 
desired information" before the public, he again 
declines to answer. James Speed would not tell the 
truth, when by telling the truth he might relieve 
his old friend in " the closing hours of his life " from 
a most damnable calumny, because, forsooth, "of 
his sense of propriety." He could not violate the 
secrecy of a Cabinet meeting, held nearly twenty 
years before ; a secrecy which he had good reason to 
believe had already been broken, in the professed 
interest of truth, by three of his own colleagues, and, 
in the alleged interest of a most foul falsehood, by 
the President himself. 

Before the Judge finally gives up his old associate 
as hopeless, he craftily points out to him a way by 
which the ex-Cabinet officer may give his testimony 
without violating the most punctilious sense of pro- 
priety, not only, but without departing one iota from 
the literal truth. Since his first letter. General 
Holt informs him : " I have learned that although 
you gained the information while a member of the 
Cabinet, it was not strictly in your capacity as such, 
bat that at the moment I laid before the President 



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214 MARY E. 8UBRATT. 

the record of the trial, with the recommendation for 
clemency on behalf of Mrs. Surratt, you chanced to 
be so situated as to be assured by the evidence of 
your own senses that such petition of recommenda- 
tion was by me presented to the President, and was 
the subject of conversation between him and myself/^ 
Does this mean that Speed was an unseen spectator 
of the confidential interview, and witnessed the writ- 
ing of the death-warrant ? At all events, for some 
reason, the ex-Attorney-Greneral was afraid to accept 
this opportunity to equivocate. 

Holt may well wonder at Speed's obstinate silence. 
He exclaims : " It is a mystery to me." It will be 
a mystery to every one, provided the black charge 
was false. But, on the hypothesis that the charge 
was true, that the paper was suppressed, either 
actually or virtually, there is no mystery. 

Had Speed known that the paper was, not only 
''be/ore'' the President, but considered by him, 
either in or out of the Cabinet, it is beyond the limit 
of human credulity to believe, for a moment, that, 
with all possible motives to lead him to succor his 
friend, and with none to lead him to shield the 
character of his dead political foe, he would not have 
uttered the one decisive word in the controversy. 
And he comes as near doing so as he dares, evidently. 
He shows, in 1873, a yearning to help his old friend 
— a yearning so strong that we may be sure it was 
not the frivolous pretext of "official propriety '^ 
which constrained him, then, much less in 1883. 



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HER VINDICATION. 215 

If he, too, as Holt said of Stanton, feared the 
resentment of the dethroned Johnson in life, he 
certainly could not have feared the resentment of 
Johnson^s ghost after death. 

He must be numbered among those who, 

" With arms encumbered thus, or this head-shake, 
Or by pronouncing of some doubtful phrase, 
As, * Welly welly we know ;^ or ' We could j an* if we would;* or 
* If we list to speak ;* or * There bey an' if they might ; ' " 

*^ ambiguously give out" to know what they are 
sworn " never to speak of." If there was any oath- 
guarding " fellow in the cellarage," rest assured it 
was not the pale wraith of the hood- winked John- 
son, but the blood-boltered spectre of his once wide- 
ruling Minister of War. 

Amid such a dearth of direct explicit testimony 
of members of the Cabinet about a disputed Cabi- 
net incident, it is curious and interesting to watch 
the assiduous ex- Judge- Advocate, with the most 
ingenious and industrious sophistry, attempt to 
extract corroboration from the statements of the 
two ex-Cabinet officers, whom he has induced to 
speak, where in truth no corroboration can be 
found. 

After all his effi)rts, he is forced at last to fall 
back upon the single testimony of the one man 
without whose encouraging information he frankly 
informs us he would not have dared to come before 



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216 MARY E. 8URRATT. 

the people^ and upon whom he brings himself to 
believe he might safely rest his defense. That man 
is John A. Bingham, now, as once before, Special 
Assistant Judge- Advocate to Joseph Holt. 

During the eight years which had elapsed since 
their crowning achievement of hanging a woman 
for the murder of Abraham Lincoln, these two men 
had lived, for a considerable portion of the time, in 
the same city. They were together in the contest 
over reconstruction and impeachment, standing in 
the front rank of the enemies of Johnson. They 
were both at the Capital during the trial of John 
H. Surratt, when the ghastly reminiscences of the 
trial of the mother along with seven chained men 
must have drawn the two military prosecutors into 
a most sympathetic union. 

And yet when, in February, 1873, Joseph Holt 
sits down in Washington to write his letter of 
inquiry to John A. Bingham, then in the same city, 
he would have us believe that he had never before 
poured into the bosom of his old colleague his own 
sufferings over the frightful calumny so long poison- 
ing the very air he breathed, never before told him 
his embarrassment over the difficulty to elicit evi- 
dence from Cabinet officials, never before besought 
his friend for his own powerful testimony on the 
side of his persecuted fellow-official. 

He writes to his former assistant, as though the 
information were now communicated for the first 
time, that the President and he were alone when 



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HER VINDICATION. 217 

the record was presented and the death-warrant 
signed ; that he had always been satisfied the peti- 
tion was considered in a Cabinet meeting, but has 
hitherto been unable to obtain any evidence upon 
that point; and then, in an artless, ingenuous man- 
ner, as if putting the question for the first time, asks 
his correspondent whether or not he had had a con- 
versation with William H. Seward, Secretary of 
State under President Johnson, in reference to the 
petition, and " if so, state as nearly as you may be 
able to do all he said on the subject ; " with a like 
request as to Edwin M. Stanton, Secretary of War. 

With a diviner's skill he selects the two members 
of the Cabinet who are then dead ; and, not to dis- 
appoint him, Bingham, in a letter from Washington 
six days later, informs him that he has struck the 
two-fold mark. With the same apparent artlessness 
which characterizes the letter of inquiry, this useful 
advocate now, as if for the first time, discloses to 
his long-tried colleague, that he did indeed have a 
conversation with each of the eminent men he had 
hit upon, who are now, alas ! dead. 

Judge Bingham is a most willing witness. He 
relates with great circumstantiality that " after the 
Military Commission had tried and sentenced the 
parties " he " prepared the form of the petition to 
the President.^' He then gives the form thus pre- 
pared as he now recollects it (in which there are 
two significant mistakes) ; he states that he wrote it 
with his own hands, that General Ekin copied it, 



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218 MARY E. SURRATT. 

and the five signed the copy ; as if all this particu- 
larity had any relevance to the question at issue, as 
if the point in dis[)ute was the existence of the 
paper, and not' its suppression at a critical moment 
after it was written. He affects to believe it neces- 
sary to state to his old colleague, that he " deemed it 
his duty to call the attention of Secretary Stanton 
to the petition, and did call his attention to it before 
the final action of the President;" — as if it were 
among the po&sibilities, that the head of the War 
Department could in any case have overlooked so 
important a paper, much less that the imperious 
Chief of this very prosecution could have been kept 
in ignorance, one hour, of what was done by his tools. 
The Special Assistant, however, at last comes to 
the point: 

" After the execution, the statement to which you refer was 
made that President Johnson had not seen the petition for the 
commutation of the death sentence upon Mrs. Surratt. I 
afterwards called at your oflfice, and, without notice to you of 
my purpose, asked for the record in the case of the assassins. 
It was opened and shown me, and there was then attached to 
it the petition, copied and signed as hereinbefore stated/' 

Oh, what an artless pair of correspondents ! The 
former Special Assistant tells the former Judge- 
Advocate how he played the detective on him to his 
friend's justification ; " without notice of my purpose " ! 

" Soon thereafter I called upon Secretaries Stanton and Sew- 
ard, and asked if this petition had been presented to the Presi- 
dent before the death-sentence was by him approved, and was 



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HEB VINDICATION. 219 

answered bj each of those gentlemen that the petition was 
presented to the President, and was duly considered bj him 
and his advisers, before the death-sentence upon Mrs. Surratt 
was approved, and that the President and the Cabinet upon 
such consideration were a unit in denying the prayer of the 
petition ; Mr. Stanton and Mr. Seward stating that they were 
present.'' 

In weighing the credibility of this statement, so 
conclusive if true, two considerations should be borne 
in mind. 

1. That we have here, not the testimony of either 
Seward or Stanton, but the testimony of a man who, 
if the paper was in fact suppressed, must have been 
a participant in the foul deed. For no one will 
believe, for a moment, that Joseph Holt would have 
dared to perpetrate, if he could, or could have per- 
petrated, if he dared, so unspeakable a wickedness, 
without the knowledge and cooperation of his fiery 
leader in the conduct of the trial. 

2. If this decisive information was in the posses- 
sion of Judge Bingham at so early a date as " soon 
after the execution," why had he not communicated 
it to his distressed partner while Stanton and Seward 
lived ? He had taken pains to obtain it to meet the 
ugly stories that were even then circulating against 
the Judge- Advocate. He knew it at the time of the 
struggle at close quarters over the petition during 
the Surratt trial, and he must have been cognizant 
of the fact, that for the lack of it, that officer had 
been forced to withdraw the allegation of a full Cabi- 
net consideration of the petition, which he had at 



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220 MARY E. SURRATT. 

first prompted the counsel of the United States 
boldly and publicly to make. 

After the trial the reports grew louder and louder, 
until it was everywhere said that Andrew Johnson 
habitually declared that he had never seen the paper. 
Holt ran hither and thither collecting testimony 
from all available quarters. Hear Holt himself: 
"Every time the buzz of this slanderous rumor 
reached him (Bingham) during the last eight years 
— which was doubtless often — his awakened memory 
must have reminded him that he held in his keeping 
proof that this rumor was false.'* Why did not his 
former assistant even relieve his tremendous anxiety 
by telling him that he had evidence which would 
blow the calumny into the air ? General Holt, in a 
letter in reply to Bingham's, dated at Washington 
the next day, which he also prints in his Vindication, 
says: 

" It would have been fortunate indeed, could I 
have had this testimony in my possession years ago." 

He calls its concealment "a sad, sad mockery." 
Yes; and why was Judge Bingham willing to perpe- 
trate such a " mockery," and continue the " mockery " 
until Stanton's death, and then until Seward's death, 
which occurred only a few months before he at last 
enlightens his colleague? Can the most credulous 
of men believe that, during all these years, he was 
guilty of such cruelty as not even to whisper such 
welcome intelligence into the ears of his sorely dis- 
tressed brother oflScer ? 



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HER VINDICATION. 221 

And what shall we say of William H. Seward? 

If thai great mau told Judge Bingham in 1865 
what the Judge, after Seward was dead, first says he 
did, why had William H. Seward kept silent so 
many years, and at last died and made no sign ? He 
must have heard the charge, so infamous if false, 
and, if Judge Bingham be believed, he must have 
known it to be false. 

He must have heard the statement of Judge 
Pierrepont in open court in 1867. He must have 
known of the President's sending for the record and 
of the explosion thereupon in the Department of 
War. Why did he not at that crisis come forward 
with the proof of which the Judge- Advocate was so 
dreadfully in need ? 

The Secretary of State could not have intrenched 
himself behind the inviolability of proceedings of 
Cabinet meetings, as did the over-scrupulous Attor- 
ney-General, because, according to Judge Bingham, 
he himself had betrayed the secret long before. 

And why did not Judge Bingham force him to 
speak, or else make public his interview with him, 
while Seward was alive and could either affirm or 
contradict it ? 

No, these two eminent lawyers, yoked together as 
the common mark of what they call a " most atro- 
cious slander," originating with a President of the 
United States, bruited about everywhere both in offi- 
cial and private circles, wait eight long years, and 
until after the death of the head of that President's 



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222 MARY E. SURRATT. 

Cabinet^ from whose lips one of them at least had 
heard at its very inoeption a solemn refutation of the 
black lie, before they venture to proclaim it to the 
world. 

Mr. Bingham admits in his letter that, in 1865, 
"he desired to make" the facts he had ascertained 
"public.'^ Why did he not "make public '^ what 
Seward had told him, while Seward was living ? 

He furnishes no answer to this question, and until 
he does, his testimony on the matter is tainted with 
a most reasonable suspicion. 

And, besides, what we know of the situation of 
the Secretary of State at the time of the execution of 
Mrs. Surratt, of his subsequent career, and of his 
lofty character as a man, is sufficient to stamp the 
account of Judge Bingham as incredible. 

William H. Seward, one of the most distinguished 
statesmen of the era of the civil war, one of the most 
illustrious founders of the republican party, and one 
of the most trusted advisers of Abraham Lincoln, 
remained in the Cabinet of Andrew Johnson until the 
close of his administration. He united in the pardon 
of Mudd, Spangler and Arnold. He stood by the 
President fearlessly in the dark days of the impeach- 
ment, and when the President had become the target 
of the daily curses of thousands of Seward's former 
political friends. Had he known that the accusation 
against General Holt was false, and at the same time 
heard the daily reiteration of its truth from the lips 
of his Chief, he would not have remained an hour in 



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HER VINDICATION. 223 

the Cabinet of such a monumental slanderer. So 
far from allowing the ceremonial restraints of Cabi- 
net rules to make him a silent accomplice in a foul 
falsehood, he would have proclaimed the truth, if 
necessary, even from the steps of the Capitol. 

Mr. Seward, at the time of the execution of Mrs. 
Surratt, could have but barely recovered from the 
broken jaw and broken arm from which he was 
suffering, when he bore the savage assault of Payne, 
and from the grievous wounds which that mad ruf- 
fian inflicted. One of his sons was still incapacitated 
because of injuries from the same hand, and his wife 
died June 21st, 1865. It is not at all probable that, 
in such dolorous circumstances, he would be required 
to give close attention to a subject entirely outside 
of the duties of his department, and in which his 
personal feelings as a sufferer were so deeply involved. 
He said himself under oath to a Congressional Com- 
mittee : " Having been myself a sufferer in that 
business, the subject would be a delicate one for me 
to pursue without seeming to be over-zealous or 
demonstrative." 

In spite of the eight-years-embalmed testimony of 
a hundred Binghams, we would not believe that the 
uncomplaining victim of Payne voted to deny the 
Petition of Mercy. 

While no attempt is made to explain the silence 
of Seward during his lifetime, or the silence of Judge 
Bingham himself regarding the information he got 
from Seward, this willing witness does give a most 



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224 MARY E. SURRATT. 

singular and perplexing explanation of his long 
silence regarding the information he got from Stanton. 

He says: (in the same letter) "Having ascer- 
tained the fact as stated, I then desired to make the 
same public, and so expressed myself to Mr. Stanton, 
who advised me not to do so, but to rely upon the 
final judgment of the people.^' 

General Holt, in a subsequent article, states that 
Stanton " enjoined upon the Judge silence in refer- 
ence to the communication." 

We are called upon to believe that the Secretary 
of War, at the very first interview with Judge Bing- 
ham, when, upon the theory of the truth of the 
. information, there could have been no conceivable 
motive for its concealment, advised his inquiring 
friend to suppress a fact essential to the refutation of a 
despicable slander, blotting the fair name of a brother 
officer. Not only this ; but that the Secretary con- 
tinued the injunction of silence during all the years 
the terrible charge was being bandied about on the 
lips of men to the daily torment of the poor man so 
cruelly assailed. As General Holt says : " It was 
a deliberate and merciless sacrifice of me, so far as 
he could accomplish it.'' 

And he " enforced " the " silence " up to the day 
of his death. 

But we ask what reason had the "Great War 
Minister '^ "to perpetrate so pitiless an outrage ?^^ 
Why, in the days of the trial of John H. Surratt, 
why, in the days of his stern enmity towards the 



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HER VINDICATION. 225 

President, when his removal furnished the main 
ground of impeachment, did he not once speak out 
for his slandered servant, or even unlock the sealed 
lips of the obedient Bingham and suffer him to tell 
the truth ? 

General Holt, in 1883, on affirming in the text of 
his article that " Messrs. Seward and Stanton declared 
the truth to Judge Bingham,^' adds the following 
explanatory note : 

^^This praise was certainly due to Mr. Seward, 
but not, in strictness, to Mr. Stanton, since on mak- 
ing the communication to Judge Bingham, he endeav- 
ored and successfully, to prevent him from giving it 
publicity. 

" The fear of Andrew Johnson's resentment, added 
to a determination on his part to leave my reputa- 
tion — then under fire from his silence — to its fate, 
sufficiently explain his otherwise inexplicable con- 
duct.^' 

But does it ? Is this in truth a sufficient expla- 
nation ? 

Stanton, the stern War Minister, fear the resent- 
ment of Andrew Johnson ! When was he taken 
with it? When he bearded the President in his 
Cabinet? When he defied him in the War Depart- 
ment, and scattered his missive of removal to the 
winds? Or did he wait to begin to fear him until 
the President retired to private life, just escaping 
conviction by impeachment, and shorn of all popu- 
larity North or South ? The preposterous nature of 
16 



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226 MARY E. 8UBRATT. 

the cause assigned casts suspicion upon the assignor 
himself. As to the second cause, we are at a loss to 
conceive why Mr. Stanton should, harbor such 
motiveless malignity against the reputation of his 
former colleague, then his pliant subordinate, and 
always his friend. We need, in this regard, an 
explanation of the explanation. If it be true, it 
settles the character of Stanton for all time. 

But, it appears, in the words of General Holt, 
that " while he (Stanton) lived, this enforced silence 
was scrupulously obeyed/' Again we ask why ? 

Why should Bingham have obeyed the '* ad vice,'' 
even if given by Stanton so long before? Why 
should the associate of Holt, in the prosecution and 
execution of Mrs. Surratt, have ministered to the 
malignity of Stanton, scrupulously obeyed his base 
injunction, and never even told his beloved fellow- 
laborer on the field of courts-martial, that he pos- 
sessed such secret sacred testimonials in his favor ? 

The General gives us no explanation of this " in- 
explicable conduct." 

Surely, the undaunted Bingham — who, as manager 
on the impeachment trial, so clawed the character of 
the arraigned President, could have had no " fear of 
the resentment of Andrew Johnson." And, unless 
the masterful Stanton held some secret back to 
feather his "advice," or lend weight to his injunc- 
tion of silence, we see no reason why the fear of 
Stanton should have closed the lips of the voluble 
Special Judge- Advocate. He surely could not have 



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HER VINDICATION. 227 

joined in the fine irony of the Secretary, that it 
would be better for their rautual friend, although 
"under fire,'' *'to rely on the judgment of the 
people." 

But another, and a final, explanation is necessaiy. 
The Great War Minister died in December, 1869. 
Holt more than hints that " Providence '' shortened 
his life so that he should no longer " perpetrate so 
pitiless an outrage'' as keeping Bingham's mouth 
shut. 

Why, then, do we hear nothing from Judge Bing- 
ham for three years more ? In the words of Holt, 
" after the Secretary had, amid the world's funeral 
pomp, gone down into his sepulchre, the truth came 
up out of the grave to which he had consigned it," 
and was "resurrected and openly announced by 
Judge Bingham." But why was the resurrection 
delayed until February, 1873? He does not tell 
us. Why should "the buzz of this slanderous 
rumor " (to use Holt's own words), " sadly recall to 
him that, though holding that proof, he was not yet 
privileged to divulge it ? " There is no answer to 
this ; none. The " scrupulosity " of Bingham did 
not end with the providential taking off of Stanton, 
but prolonged its reverential obedience to the advice 
of the dead, until his great colleague also was sum- 
moned from the scene. 

Such resurrected truth, like the suggested letter of 
Speed to be used only after poor Holt's death, 
seems doubly obnoxious to the latter's own conmion 



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228 MABY E. SUBRATT. 

sense remark : " thus straDgely withheld from the 
public, it would not, when it appeared, be credited." 

On the whole, it is exceedingly doubtful whether 
Judge Bingham's testimony does not do more harm 
than good to General Holt's case. It is the testi- 
mony of an accomplice, if the charge it is meant to 
refute is true. Its subject-matter is hearsay, with- 
held, so long as the direct evidence was attainable, 
for no good reason, or for a reason assigned which 
will not stand a moment's examination. 

This interchange of letters between two associates 
in infamy, if infamy there were, the one applying 
for, and the other disclosing ostensibly for the first 
time, at so late a day, decisive information, which, in 
the ordinary course of things, the one must have 
asked for or the other revealed, and both talked over 
from the beginning, wears upon the face all the fea- 
tures of a collusive correspondence. 

No one acquainted with the facts can be induced 
to credit what both these men state upon the thres- 
hold of their correspondence, and upon the truth of 
which their credibility is staked for all time, that, if 
two such conversations with Judge Bingham actually 
took place, this co- victim of a common charge would 
ever have withheld all knowledge of such important 
testimony from his brother in affliction for eight 
years, and until the lips of his two eminent inter- 
locutors, whose confirmation would have at once and 
for ever crushed the calumny, were closed in death. 



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HER VINDICATION. 229 

And, with this incontrovertible assertion, we dis- 
miss John A. Bingham to keep company with 
Richard Montgomery and San ford Conover, two 
witnesses who were once the subjects of his own 
fervid eulogy. 

Another aspect of the case must for a moment 
detain us. 

Under the admitted fact that the President 
approved the death-sentence on Wednesday, July 
6th, it is by no means clear how we are to find room 
for this supposed Cabinet meeting. 

The natural construction of Bingham's letter would 
lead us to believe that the Cabinet meeting, which 
the two Secretaries are said to have described, was a 
regular consultation between " the President and his 
advisers,^' held before the " confidential interview " 
at which the President "approved the death-sent- 
ence;'' and that the entire Cabinet voted on the 
question raised by the petition, because it was " a 
unit in denying the prayer." This is but another 
version of the " full Cabinet " of Judge Pierrepont's 
first statement, and forcibly suggests that the two 
have an identical origin — ^at first withdrawn under 
compulsion while Seward lived, at last brought for- 
ward again after his death. 

And every one, on such construction, would expect 
to hear the voices of McCuUoch, Welles and Den- 
nison, still living in 1873, and accessible to the 
ex-Judge-Advocate. 



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230 MABT E. 8URRATT. 

He states in his " Refutation/' that he " had 
satisfactory reasons for believing that they were not 
there ; '' but he could not have gathered those rea- 
sons from Judge Bingham or his letter, which really 
is only consistent with the presence of some, if not 
all, of the three ; and it is naturally to be inferred 
he got them from the ex-merabers themselves in 
letters repudiating all knowledge of the petition ; — 
letters he takes care not to publish. 

Again : the Cabinet meeting described in Judge 
Bingham's letter cannot be made to square with the 
meeting described in the letter of Judge Harlan. 
The former was a regular Cabinet meeting, the latter 
was an informal discussion by a few members of the 
Cabinet. At the one, the petition was " duly con- 
sidered," at the other, neither record nor petition 
was present. At the one, "a formal vote'' was 
taken upon the " question as to Mrs. Surratt's case ; " 
at the latter, her case *' was never submitted to a 
formal vote." 

But — not to dwell further on dispensable points 
— it is enough to say that any Cabinet meeting 
whatever, for the consideration of the petition, held 
before the President's approval of the death-sentence, 
is, on the admitted facts of the case, an impossibility. 

Indeed Holt himself, when driven to the question, 
does not claim that there was. The record was in 
the custody of the Judge-Advocate from the 30th of 
June until that officer carried it to the President 
on the 5th of July, and during that interval the 



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HER VINDICATION. 231 

President was siok-a-bed. It was General Holt, as 
he himself states, who first " drew his attention to the 
recommendation," and "the President then and 
there read it in my (his) presence." And this was 
at the confidential interview on Wednesday, July 
5th. There could have been no meeting of the 
President and his Cabinet at which the record and 
petition were present and discussed, " before the 
approval of the death-sentence ; " which confessedly 
was done at the confidential interview. 

When this impossibility was pointed out by 
Andrew Johnson, Greneral Holt, in his "refutation," 
with great show of indignation, denounces such an 
argument as " intensely disingenuous." While con- 
ceding at once that from the adjournment of the 
Commission to the 5th of July, the President " had 
been sick in bed, and had, of course, had no oppor- 
tunity of conferring with any members of his Cabi- 
net ; " he proceeds to show what his idea of intense 
ingenuousness is, by claiming that what " Messrs. 
Seward and Stanton " (of Bingham's letter) " clearly 
meant was, that before the President had finally and 
definitely approved the sentences in question," the 
recommendation to mercy " had been considered by 
him and his advisers in Cabinet meeting;" and 
therefore such a meeting might have been held after 
the signature to the death-warrant, say on Wednes- 
day afternoon (5th), or on Thursday, the 6th. And 
he, now, once again, as in the days of the Surratt 
trial, abandons all idea of a " full " or regular Cabi- 



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232 MABY E. SURKATT. 

net meeting, and endeavors, with the most transparent 
sophistry, to identify the informal discussion of 
Judge Harlan's letter with the Cabinet Council of 
Judge Bingham. But alas ! for the ingenuous (Gen- 
eral ! Circumstances are too strong for him. For 
there is no more room for a Cabinet meeting, formal 
or informal, to do what Judge Bingham's informants 
are said to relate — i. e, consider, and then vote upon 
the petition — after the confidential interview than 
before. 

It is agreed on all hands that the President 
approved of the death-sentence on Wednesday, at 
the confidential interview between Holt and himself, 
and, at that very time, and by the same warrant, 
appointed Friday the 7th, for the executions. The 
whole matter was begun and ended in an hour. 

There was neither opportunity, nor, if there had 
been, use, to hold a Cabinet consultation upon the 
question of commutation after that. 

The President had reviewed the record, and, with- 
out consultation with any human being but Holt, 
put his name to the death-warrant. Why consult 
his confidential advisers after he had decided the 
whole matter? Holt himself says that, at this 
private interview, it was not he, but Andrew John- 
son, who had fully made up his mind that Mrs. 
Surratt must be put to death ; that the President 
needed no urging or advice on that subject ; that he 
inveighed against the women of the South with a 
ferocity which reminds us of the loyal Bingham 



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HER VINDICATION. 233 

himself. Holt says that the President himself, with- 
out a suggestion from him, was "prompt and 
decided'^ "as to when the execution should take 
plaoe,'^ " and in the same spirit too, in which he 
subsequently suspended the writ of Habeas Corpus, 
he fixed the Friday following.'^ Why call in his 
" advisers '' after he had, with the approval of his 
judgment and his conscience, put his hanA to the 
work of blood ! Besides, if he needed such a super- 
erogatory endorsement of his " advisers,^' there was 
no time to get it. 

The record with the death-warrant went direct to 
the Adjutant-GeneraFs oiBce that very Wednesday. 
Holt cannot remember whether he took it or not, 
nor can the Adjutant-General remember when or 
how he received it. But this is of no consequence. 
The order for the execution was drawn on that day, 
the necessary copies made that day ; it was promul- 
gated on the morning of Thursday the 6th, and on 
that day at noon, the warrant for her death, within 
twenty-four hours, was read to the fainting woman 
in her cell. All day long, on the 6th, the White 
House was besieged by her friends, her priests and 
her daughter, to obtain a reprieve. The guardians 
of the President had no time to hold Cabinet con- 
sultations over foregone dooms of death. They were 
too busy intercepting verbal prayers for mercy, hold- 
ing shut the doors of the President's private room, 
sending away all petitioners, for a few more hours' 
life, to the merciful Judge-Advocate, making sure 



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234 MAKY E. StJRKATT. 

that there should be four pine coffins and four newly 
dug graves, and that the Habeas Corpus should not 
leave one empty. Hold a Cabinet meeting after the 
President had signed the bloody warrant, and Stan- 
ton had once clutched* it! Reopen the perilous 
question to hear Welles and Dennison, and McCul- 
loch and Seward, to say nothing of Harlan and 
Speed dnd Stanton, discuss a petition addressed to 
the President who had already denied it ! " Five 
members of our court have been suborned by their 
feelings to swerve from their duty. We run no 
more risks of soft-hearted gallantry this time amid 
the members of the Cabinet. Let the funeral games 
begin.'^ 

The ex- Judge- Advocate insists that the signature 
to the death-warrant was a matter of very little 
moment. The President could withdraw it at any 
time. But would he have us believe that, after the 
President had dispatched such a fatal missive to the 
officer whose sole duty, with regard to it, consisted 
in the promulgation of an order for its execution 
within twenty-four hours, such action was simply 
provisional and, according to usage, still subject to 
rescission by a Cabinet vote ? 

Desperate, indeed, must be the necessities of a 
defence, which drive the defendant on the forlorn 
hope of identifying a Cabinet meeting, voting as a 
unit to deny a petition for clemency, ^^ before the 
death-warrant was approved/^ with a Cabinet discus- 
sion of the petition, after the death-warrant, fixing 
the execution on the next day but one, had been 



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HER VINDICATION. 235 

signed by the President, (who is represented as 
urgent and eager at the moment of his signature to 
exact in the shortest time the extremest penalty); 
on the ground that the latter was held before the 
theoretical animus revocandi of the Executive had 
become technically inoperative with the last sigh of 
the condemned. 

It has been suggested by one of his subordinate 
officers that the Secretary of War having seen the 
petition as soon as the record came to his department, 
it is inconceivable that, at some moment between the 
30th and the 7th, the matter should not have been 
discussed by him with the President. 

Of course, there can be no doubt that Stanton 
knew all about the recommendation. But, (and this 
obvious answer seems to have altogether escaped the 
attention of his friend), if the paper was in fact 
suppressed, it was suppressed with Stanton's own 
knowledge. Indeed, his must have been the master- 
hand. He it was who kept the late Vice-President 
up to the mark of severity as long as the bloody 
humor lasted. 

He was the sovereign, and Bingham and Holt 
but his vassals. Everybody will give them the 
credit of not having dared to dream of suppression 
without the electrifying nod of their imperious lord. 

And, from the long silence of one, if not both, of 
his slaves, it would appear, that he not only directed 
the suppression of the paper, but was too proud to 
deny, or suffer his minions to deny, it to his dying day. 



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CHAPTER V. 

Andrew Johnson Signs Another 
Death- Warrant. 

LET us turn from the case made by General Holt, 
which on a cursory inspection seems so strong, 
but the seeming strength of which, on a closer 
scrutiny, dissipates itself among such perplexing 
questions, and lands us at last in "the "enjoined 
silence '^ of Stanton, to the first public, authoritative 
charge made by the ex-President. 

It appeared, November 12th, 1873, in the same 
newspaper which had published General Holt's Vin- 
dication, to which it was a reply. For it must be 
remembered that it was Joseph Holt, for eight years 
the accused, and not Andrew Johnson, for eight years 
the accuser, at the bar of rumor, who first threw 
down his gage in the public arena, defying his secret 
antagonist to come forth. 

The gallant knight chose his own good time; 
and, at last, surrounded with sponsors, both clerical 
and martial, with banners flying and a most sonorous 
peal of trumpets, he burst into the lists, as though 
he would fain hope by noise and show to over-awe 
his dreaded adversary into submissive silence. 
236 



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HEK VINDICATION. 237 

His thunders availed nothing. His glove had no 
sooner reached the ground than it was taken up. 

Let us hear the plain, straightforward statement 
of Andrew Johnson. There are no mysteries to 
unravel, no explanations to explain. 

** The findings and sentences of the court were submitted on 
the 5th of July (he and I being alone), were then and there 
approved by the Executive, and taken by the Judge- Advocate- 
General to the War Department, where on the same afternoon 
the order to carry them into effect was issued. Mr. Speed, 
doubtless, saw the record, but it must have been in the Depart- 
ment of War, and not in the Executive office." 

After thus quietly disposing of Mr. Speed^s evi- 
dence, he proceeds : — 

**The record of the court was submitted to me by Judge 
Holt in the afternoon of the 5th day of July, 1865. Instead of 
entering the Executive Mansion in the usual way, he gained 
admission by the private or family entrance to the Executive 
office. The examination of the papers took place in the library, 
and he and I alone were present. The sentences of the court 
in the cases of Herold, Atzerodt and Payne, were considered 
in the order named, and then the sentence in the case of Mrs. 
Surratt. In acting upon her case no recommendation for a com- 
mutation of her punishment was mentioned or submitted to me.'' 

V 

He then states that the question of sex was dis- 
cussed alone ; Holt insisting upon carrying out the 
sentence without discriminating as to sex; that a 
woman unsexed was worse than a man ; that too 
many females had abetted traitors during the war, 
and that there was a necessity an example should be 
made. 



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238 MARY E. BURRATT. 

" He was not only in favor of the approval of the sentence 
but its execution on the earliest practicable day. 

** Upon the termination of our consultation, Judge Holt 
wrote the order approving the sentences of the Court. I 
affixed my name to it, and, rolling up the papers, he took his 
leave, carrying the record with him, and departing as he had 
come through the family or private entrance." 

And there we must leave him. 

True, he rejoiDed, in December, in another very 
long article, contributed to the same newspaper, in 
which he endeavored to break the force of several 
points made in Johnson's answer, and dwelt with 
much insistence on the abstention of the President 
from making any open charge against him, and on 
his adversary's present silence with regard to General 
Mussey's letter. But there is nothing new in the 
way of testimony, except two sympathizing letters 
from Generals Ekin and Hunter, respectively ; the 
former of which might be construed by the uncharit- 
able as evidence that General Holt, at the time of 
the execution, was already forestalling anticipated 
accusation by defending himself in private to his 
friends ; the latter is a tribute from the grim Presi- 
dent of the Military Commission to the Judge- 
Advocate's tenderness to the prisoners before that 
body, of which the printed record of the trial 
affords such striking illustrations. 

This lengthy "Refutation," as it was entitled, 
upon the whole added little, if any, strength to the 
"Vindication." His accuser, on his side, resting 



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HER VINDICATION. 239 

content with his one single explicit public utter- 
ance, paid no attention to it. 

And when, at the present hour, we calmly survey 
the relative standing, the position, the character and 
career of the two combatants, the circumstances 
surrounding the momentous confidential interview, 
the silent testimony of the record with the signifi- 
cant twist of the death-warrant, the nature of the 
accusation, the mysteries enveloping the belated 
defense, the probable motives actuating each, the 
thirst for blood which for a time maddened the 
leading spirits of the War Department, the passivity 
of Johnson for the few weeks after his sudden and 
sombre inauguration, and for the same period the 
wild and reckless predominance of Stanton ; — what 
valid reason exists why we should discredit, or even 
suspect for a moment, the veracity of the ex-Presi- 
dent? Andrew Johnson looms up in history a very 
different figure from the one discerned by his ene- 
mies, both North and South, amid the passions of 
his epoch. He was no inebriate, as he was stig- 
matized because of the unfortunate incident at his 
inauguration as Vice-President. He was no weak, 
frightened tool, as he appeared to be at the bloody 
crisis of his accession to the Presidency. He was 
no apostate from his section, as he was cursed by 
the South for being at the breaking out of the war. 
He was no traitor to the North, as he was denounced 
by the impeachers for the mere endeavor to carry 
out the reconstruction policy of his lamented prede- 



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240 MABT E. SUBRATT. 

cessor. He was not the garrulous fool, he was 
called in ridicule when he ^' swung around the 
circle/^ He is now recognized, when his career is 
reviewed as a whole, as a man temperate in his 
habits, firm, self-willed and honest ; as a statesman, 
intelligent though uncultured, sometimes profound 
and always sincere; and as a union-loving, non- 
sectional, earnest patriot. His impeachment is 
looked back upon by the whole country with shame. 
His impeachers are already, themselves, both im- 
peached and convicted at the bar of history. 

In sober truth, so unique and perfect a triumph 
never capped and completed the career of Roman 
warrior or modern ruler of men, as when, but little 
more than a year after his reply to General Holt, 
the ex-President — once again the chosen representa- 
tive of that State whose rebellious people he had 
coerced with an iron hand as military governor dur- 
ing the Civil War — took his seat in that body, 
before which he had been arraigned on the impeach- 
ment of the House of Representatives and had 
escaped conviction by but a single vote. 

With the words of Holt's denunciation still fresh 
in their remembrance, the citizens of Washington 
loaded the desk of the retributive Senator with 
flowers; and, when he advanced, amidst so many 
colleagues who had condemned him as judges, to 
take the oath of office, and again when, a few days 
later, his voice, which had before been heard plead- 
ing for the imperiled Union, was from the same 



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HER VINDICATION. 241 

place once more heard pleading for the imperiled 
Constitution, the crowded galleries and corridors 
gave him a conquering heroes welcome. 

When in the following summer he died, his body- 
was followed to its grave in the mountains by what 
it is hardly an exaggeration to call the whole people 
of his State. When Congress reassembled, the 
Senate and the House clothed themselves with 
crape. One of his former judges, who had voted 
him guilty of high crimes and misdemeanors 
(Morton, of Indiana), thus spoke of him in the 
Senate : 

" In every position in life he showed himself to 
be a man of ability and courage, and I believe it 
proper to say of Andrew Johnson that his honesty 
has never been suspected ; that the smell of corrup- 
tion was never upon his garments.^' 

The same Senator related that when Johnson, as 
the newly appointed Military Governor, arrived at 
Nashville *' he was threatened with assassination on 
the streets and in the public assemblies, but he went 
on the streets ; he defied those dangers ; he went 
into public assemblies, and on one occasion went 
into a public meeting, drew his pistol, laid it on the 
desk before him, and said : ' I have been told that 
I should be assassinated if I came here. If that is 
to be done then it is the first business in order, and 
let that be attended to.' No attempt having been 
made he said : ' I conclude the danger has passed 
by;' and then proceeded to make his speech." 
16 



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242 MABY £. SURRATT. 

Again the Senator said : ^' After I had voted for 
his impeachment, and met him accidentally, he 
wore the same kindly smile as before, and offered 
me his hand. I thought that showed nobility of 
soul. There were not many men who could have 
done that." 

The man, of whom two such incidents could be 
truthfully related, could never have invented so foul 
a charge against an innocent subordinate. 

A Senator from a neighboring State, (McCreery), 
on the same mournful occasion said of him : 

" When he went to Greeneville he was a stranger, and a 
tailor's " kit/' his thimbles and his needles, were probably the 
sum-total of his earthlj possessions ; at his death, the hills and 
the valleys and the mountains and the rivers, sent forth their 
thousands to testify to the general grief at the irreparable loss. 

"I honor him for that manlj courage which sustained him 
on every occasion, and which never quailed in presence of 
opposition, no matter how imposing. I honor him for that 
independence of soul which had no scorn for the lowly, and no 
cringing adulation for the exalted. I honor him for that 
sterling integrity which was beyond the reach of temptation, 
and which, at the close of his public service, left no blot, no 
stain upon his escutcheon. I honor him for that magnanimity 
which after the war cloud had passed, and the elements had 
settled, would have brought every citizen under the radiant 
arch of the bow of peace and pardon." 

Another Senator (Paddock, of Nebraska) gave 
utterance to the following unchallenged statement : 

** I believe, sir, notwithstanding the fact that a painful chap- 
ter relating to the official acts of Andrew Johnson was made in 
this very chamber, that no Senator here present will refuse 



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HBB VINDICATION. 243 

to-day to join me in the declaration that he was essentially an 
honest man ; aye, sir, a patriot in the fullest sense of the term." 

Yet another (Bogy, of Missouri), said : 

''His last election to a seat on this floor as Senator was the 
work of his own hands, brought about by his own indomitable 
will and pluck, the reward of a long and terrible contest, cpn- 
tinuing for seven years, unsuccessful for a time, and appearing 
to all the world besides himself as utterly hopeless ; neverthe- 
less, finally he was triumphant. From what I have learned 
from those who are familiar with this, his last contest, he 
exhibited more openly his true and peculiar nature, than at 
any other period of his life — which was to fight with all his 
might and all his ability, asking no quarter and granting none ; 
and although like bloody Richard now and then unhorsed, still 
to fight and never surrender, until victory perched upon his 
banner." 

Senator Bayard said : "Friend or foe alike must 
admit his steady, unshaken love of country; his 
constant industry ; his simple integrity and honesty ; 
his courage of conviction, that never faltered/' 

Truly, the solemn word of a man, of whom such 
things can be said, is no light thing, — to be thrust 
aside by windy abuse or vociferous denial. 

Now, what conceivable motive had such a man, 
seated in the chair of the Chief Magistracy of this 
republic, surrounded by Cabinet officers who had 
been the advisers of his predecessor, to invent, in 
the first place, so horrible a story as that a friendly 
subordinate officer had deliberately, in a case of life 
and death, suppressed so vital a document? For it 



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244 MABY E. SURBATT. 

is contradictory of historical fact, that he never 
openly made the charge until the year 1873. 

This may be true of the period from about the 
time of the execution up to the disclosures of the 
John H. Surratt trial in 1867. But our review of 
the incidents of that trial, which General Holt in 
his* refutation seemed to have totally forgotten, 
proves, beyond the possibility of controversy, that 
the President then first thought himself driven to 
inspect the record to ascertain the existence of such 
a paper, and then first, after the discovery that there 
was in fact a recommendation, at once, and at all 
times afterwards, openly asserted that he had not 
seen it or read it. Every one around him knew 
that he so said. Stanton, his great enemy, Seward, 
his great friend, knew it. Bingham, at the very 
beginning when Stanton forbade him to refute it; 
Bingham, when Butler pierced his shield in the 
House of Representatives, and Bingham, when at 
the bar of the Senate as manager of the impeach- 
ment he belabored his old-time Commander-in-Chief, 
knew it; Holt, when he delivered his contradiction 
through Judge Pierrepont to the Surratt jury, and 
when he felt the shadows darkening over his head 
because of the " inexplicable conduct " of the great 
War Minister in "perpetuating the pitiless out- 
rage," knew it, and recognized the President of the 
United States as the responsible author of the tre- 
mendous accusation. 

If Holt is to be credited, the President must 
have known that four at least of his confidential 



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HER VINDICATION. 245 

advisers stood ready to shatter the baseless calumny. 
What conceivable motive, we ask again, to invent 
such a story — so easy of refutation, so ruinous to 
himself, if refuted ? 

The necessity to make some reply to this pressing 
question seems to have driven both General Holt 
himself and his defenders into the maintenance of 
the most absurd, antagonistic and untenable positions. 

Holt's theory on this subject in his ** Refutation " 
is even ingenious in its absurdity. He would have 
us believe that when Johnson originally fabricated 
the calumny, "he had not yet broken with the 
Republican party, and was, doubtless, in his heart 
at least, a candidate for reelection," of course by 
that party. If this is true, then the *^ fabrication " 
was made before the fall of 1865, for by that time 
the President was in full swing of opposition to the 
men who had elected him Vice-President. During 
this brief transitory period, according to Holt, 
Johnson discovered that the hostility of the Catholics 
(especially, as may be inferred, those of the Repub- 
lican party), on account of his signature to the 
death-warrant of Mrs. Surratt, would blast this 
otherwise felicitous prospect. Accordingly, to abate 
this uncomfortable hostility, this. Republican candi- 
date concocted the vile slander and set it secretly 
and anonymously circulating among his friends and 
followers ; — even his greed for reelection being not 
strong enough to give full effect to his cowardly 
policy by openly clearing his own skirts. Could 



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246 MARY E. SURBATT. 

the fatuity of folly farther go? The dream of 
Andrew Johnson as a Kepublican candidate for 
President had ceased to be possible even before the 
execution of Mrs. Surratt. The Catholics who 
could be conciliated by any such story might be • 
numbered on Johnson's fingers. And the undis- 
guised signature to the death-warrant could be 
obliterated by no plea of abatement which the peti- 
tioner dared not avow. 

On the other hand, the other suggestion put for- 
ward, if not by Holt himself, by several of his 
defenders, viz.: that the President propagated the 
lie " to curry favor with the South in the hope to 
be elected to the Presidency," has the one merit of 
being in direct antagonism to the foregoing theory, 
but nevertheless is yet more flimsy and preposterous. 
At the time he invented the story, if invention it 
was, (as Holt ap{)ears to have perceived), the road to 
the Presidency was to curry favor with the North 
and not with the down-trodden South. And after 
Johnson had escaped conviction and removal by but 
one vote, and had retired from oflBce execrated by 
the North and distrusted even yet by the South, the 
chance of the Presidency for such a character as he 
was popularly considered then — especially by truck- 
ling to the discredited South^-could only look fair 
in the imagination of a lunatic. 

No Southern man has seriously thought of being, 
or has been seriously thought of as, a candidate for 
President of either political party since the termi- 



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HER VINDICATION* 247 

nation of the war, let alone the one Southerner 
reputed to have been false alternately to both parties 
and both sections. 

Besides, Andrew Johnson never apologized for 
his appointment of the Military Conamission, for 
his approval of its judgment, or for his signature to 
the death-warrant. He pardoned Dr. Mudd on the 
very eve of the Impeachment Trial. And he par- 
doned the two remaining prisoners just before he 
went out of office. And he may, therefore, be held 
to have thus signified his reawakened reverence for 
constitutional rights as expounded in the Milligan 
decision. 

But in no other way did he ever acknowledge 
that in taking the life of Mary E. Surratt he had. 
done wrong. On the contrary, he defended his 
action in his answer of 1873, and he justified his 
denial of the habeas corpus, which the ex- Judge- 
Advocate had the exquisite affrontery to cast up 
against him. That a President in his situation 
could cherish aspirations — or hope — of reelection, 
based on such a phantom foundation as the whining 
plea that he would have commuted the unlawful 
sentence of a woman, hung by his command, to 
imprisonment for life, had he been permitted to see 
the petition of five of her judges ; — such an impu- 
tation can only be made by men mad enough to 
believe him to have been the accomplice of Booth 
and Atzerodt. 



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248 MARY E. SURRATT. 

Finally, let us sternly put the question : — What 
right has Holt to ask us, on the word of himself 
and his associates, to reject the testimony of Andrew 
Johnson, who at the best was their accomplice or 
their tool ? He, and his associates, demanded the 
life of Atzerodt for barely imagining the death of 
so precious a Vice-President. He, and his asso- 
ciates, hounded the woman to the scaffold, welcom- 
ing with delight the stories of spies, informers, 
personal enemies, false friends, against her, and 
meeting with contumely and violence the least scrap 
of testimony in her favor. He suppressed the 
" Diary.'' Why may he not have been bad enough 
to suppress the recommendation? Two of the 
same band of woman-stranglers kept back from the 
President the petition for mercy, which wailed out 
from the lips of the stricken daughter. Why 
should he not have kept back the timorous sugges- 
tion of five officers, who were so soft-hearted as to 
"discriminate" as to sex? His fate will be — and 
therein equal and exact justice will be done him — ^to 
go down through the ages, stealing away, in the 
dusk of the evening, from the private entrance of 
the White House, bearing the fatal missive — the 
last feeble hope of the trembling widow crushed in 
his furtive hand. 



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CHAPTER VI. 
Conclusion.. 

THAT the petition for commutation was a 
device of the Triumvirate of prosecutors to 
secure the coveted death-sentence, employed in reli- 
ance upon the temporary ascendency of the chief of 
the three over the beleaguered President, and upon 
the momentary pliability, heedlessness, or, it may 
be, semi-stupefaction of the successor of the mur- 
dered Lincoln, to smother the offensive prayer: — 
such an hypothesis alone seems adequate in any 
degree to reconcile the apparent contradictions, clear 
up the perplexities and solve the mysteries, which 
hang around this dark affair. 

It furnishes the only rational answer to the else 
insoluble question, how it happened that a court, a 
majority of whose members had the inclination and 
the power to lower the punishment of the solitary 
woman before them to life-long imprisonment, as 
the court did with the three men who were tried 
with her and convicted of the same crime, did 
nevertheless, by at least a two-thirds vote, condemn 
her to die by the rope. 

249 



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250 MABY E. 8URRATT. 

It lights up the else inscrutable prohibition by 
Stanton of a public exculpation of his subordinate 
officer^ softened by the sardonic admonition "to 
rely " for justification "on the final judgment of the 
people." A source of glorification, rather, it should 
be, that no maudlin pity for a woman had been suf- . 
fered to intercept the death-stroke of a righteous 
vengeance. 

It accounts for the " scrupulous obedience " of 
Bingham, not only until Stanton's death, but three 
years after, until Seward, Uk), had gone. Stanton ' 
knew the petition had been suppressed or made 
invisible ; Seward, that the petition never had been 
before the Cabinet. 

It throws a glimmer, faint it is true, on the 
shameful attitude of Speed, eight years afler the 
death of Johnson — still shutting his ears to the 
repeated appeals of his agonized friend, and still 
falling back on his propriety. According to Judge 
Harlan, the whole record had been examined by the 
Attorney-General, as well as the Secretary of War. 
Speed, too, under the spell of Stanton, may have 
fingered the obnoxious paper, which might nip the 
bloody consummate flower of his " common law of 
warP 

It furnishes the only plausible reason why such 
an historic document did not appear in the published 
ofiicial record of the proceedings of the Military 
Commission, in November, 1865, or in the reports 
of the Judge- Advocate, first, to the President, and, 
second^ to the Congress. 



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HER VINDICATION. 251 

It illumines with a baleful light the atmosphere 
of sinister secrecy, in which this adjunct to the 
record, for no lawful reason, has been enshrouded ; 
the mysterious incidents at the Surratt trial, such as 
the tardy and reluctant production, the faltering 
and imperfect exhibition, and the hasty withdrawal 
of the "roll of papers ; '^ the two statements of Mr. 
Pierrepont; the shrinking of the "full Cabinet 
meeting '' into a " confidential interview," until after 
Seward^s death ; and the singularly equivocal lan- 
guage that the petition was '^ before the President " 
when he signed the warrant. 

And, finally, when it is considered that the sup- 
pression of the paper was not the overt act of any 
one man, but the result of a strictly formal presenta- 
tion of the record on the part of the Judge- Advocate, 
aided, it may be, by a timely sleight-of-hand in writing 
the order of approval, and of a blind carelessness on 
the part of the President in the examination of the 
papers ; this hypothesis goes far to explain the reluct- 
ance of General Holt to rest his defense on his own 
evidence of the confidential interview, his eager 
grasping after Cabinet corroboration, and the absten- 
tion of both Judge-Advocate and President from 
taking official action upon the charge, the one for 
vindication, the other for punishment. 

And so the history of this murder of a woman by 
the forms of military rule slowly unrolls itself, to 
disclose, as its appropriate finis, the writer of the 



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252 MARY E. SURRATT. 

death-warrant struggling in the meshes of his own 
fraud. 

The draughtsman of. the unaddreased petition for 
commutation, after waiting eight years for death to 
clear the way, comes to the help of his old colleague, 
only to be caught in the same net. 

The entangled twain call up the sullen shade of 
their departed master, and force him to father the 
trick he fain would have scorned. 

These three are the men who, when the summary 
methods of martial law would else have failed to 
crush out entirely the life of their victim, contrived 
to attain their bloody end by cool and deliberate 
chicanery. 

The other actors on the scene may plead the mad- 
ness of the time. For these three no such plea is 
open. They superadded to the common madness of 
the time the particular malice of the felon. Upon 
their three heads should descend the full weight of 
criminal turpitude involved in this most unnatural 
execution. 

They sat upon the thrones of power. They 
dragged a woman from her humble roof and thrust 
her into a dungeon. They chose nine soldiers to 
try her for the murder of their Commander-in-Chief. 
They chained her to the bar along with seven men. 
They baited her for weeks with their Montgomerys 
and Conovers, their Weichmans and Lloyds, the 
spawn of their bureau, dragooned by terror or sub- 
orned by hope. They shouted into the ears of the 



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HER VINDICATION. 263 

court appeal on appeal for her head. And, when 
at last five of their chosen sons sickened at the task, 
and shrank from shedding a woman's blood, they 
procured the death-sentence by a trick. They 
forged the death-warrant by another. They turned 
thimble-riggers under the very shadow of the gal- 
lows. They cheated their own court. They cheated 
their own President. They cheated the very execu- 
tioner. They sneaked a woman into the arms of 
death by sleight-of-hand. They played their confi- 
dence game with the King of Terrors. They man- 
aged to hide the cheat from the country until they 
quarreled with their new Commander-in-Chief. 
Theu'^nsued an interval of ambiguous mutterings, 
dark equivocations, private accusation, private de- 
fenses. From one side : " I never saw the paper.'' 
From the other : " It was right before his eyes." 

The twin ex-Judge-Advocates, at length, brace 
each other up to the sticking-point and venture on 
an appeal to the public. The ex-President, thus 
driven at bay, fulminates the secret infamy in all 
its foul extent to the whole world. Thereupon, 
Great Nemesis finds her opportunity, and makes 
these once high-placed, invulnerable woman-slayers 
the sport of her mighty hands. 

Every one, as if coerced by some magic power, 
comes at last to act as though he were afraid of the 
other, and, willing or unwilling, contrives to show 
how profoundly base the others are. 



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254 MABY E. snBBAirr. 

Stanton slinks mysteriously into the shadow of 
death, refusing to cut his co-conspirator down from 
the gibbet where the dreaded Johnson has swung 
him. Bingham, standing like an Indian with a 
single female scalp bleeding from his girdle, presses 
his finger to his lips until Stanton and Seward die. 
Speed, with the obnoxious petitioii pressed again 
and again to his nostrils, feebly yet persistently 
refuses to open his mouth. 

Holt pictures the dead Johnson exulting even in 
Hell over the silence of his old Attorney-General ; 
blasts the character of Stanton by ascribing his 
injunction of silence to a motive the most diabolic ; 
and, unconscious seemingly that he does it, &t the 
same time ruins the credit of Bingham by extolling 
his "scrupulous obedience" to such an infernal 
command. 

Johnson unwittingly proclaims the pardon of the 
slain woman in his anxiety to show that he signed 
her death-warrant through ignorance, forced upon 
him by the ineffable depravity of the men in whom 
he was compelled to trust. 

This controversy over the petition of clemency 
was the only thing needed to round out and decorate 
the entire, complete and perfect iniquity of ihe 
whole drama. It is immaterial and indifferent to 
history where the truth lies between these com- 
batants in so unsavory a strife. Each one tears off 
the burning brand of shame, not to extinguish it, 
but to pass it on to his colleague. If we credit 



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HER VINDICATION. 255 

Holt, it is difficult to conceive the malignity of soul 
of Andrew Johnson, who could invent so foul a 
charge, the meanness of spirit of Edwin M. Stanton, 
who, knowing its blackness, could forbid the pro- 
mulgation of the truth, the cowardly silence of 
John A, Bingham, whose lips the death of the 
dreaded Stanton alone could unclose. If W(3 credit 
Johnson, then in all the crowded catalogue of 
inquisitors, persecutors, cruel or pettifogging prose- 
cuting officers, devil's advocates and murderous 
Septembrisers, there is not one who would not 
spurn with profane emphasis association with Holt 
or Bingham or Stanton. 

As the choicest specimen in this shower of accu- 
sations and counter-accusations, listen to the tender- 
hearted ex- Judge- Advocate of 1873 — once the stony 
head of the death-dealing Bureau — rebuking Andrew 
Johnson for his cold-blooded cruelty! "I would 
have shuddered to propose the brief period of two 
days within which the sentences should be executed, 
for with all the mountain of guilt weighing on the 
heads of those convicted culprits I still recognized 
them as human beings, with souls to be saved or 
lost, and could not have thought for a moment of 
hurrying them into the eternal world, as cattle are 
driven to the slaughter-pen, without a care for their 
future.^' 

Listen again to the former expounder of the 
" common law of war '^ before the Military Com- 
mission, as he arraigns the ex-President for his dis- 



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256 MABY E. 8URBATT. 

regard of the writ of habeas corpus : " The object 
of which was, and the effect of which would have 
been, had it beeu obeyed, to delay the execution of 
Mrs. Surratt at least until the questions of law 
raised had been decided by the civil courts of the 
District; yet this writ was, by the express order of 
the President, rendered inoperative. And so, under 
this Presidential mandate, the execution proceeded. 
* * * But for his direct intervention and defiant 
action on the writ, whatever might have been the 
final result, it is perfectly apparent her life would 
not then have been taken." 

Once more. Hear J. Holt, the Recorder of the 
Commission ! "As Chief Magistrate he was, under 
the Constitution," (Hear him !) " the depositary of 
the nation's clemency and mercy to the condemned, 
and a pressing responsibility rested upon him as 
such to hear the victims of the law before he struck 
them dovmJ^ (The italics are his who wrote out the 
death-warrant.) "Did he do this? On the con- 
trary, * * he gave * * a peremptory order to 
admit nobody seeking to make an appeal in behalf 
of the prisoners, saying that he would ^ see no one 
on this business.' 

"He closed his door, his ears, and his heart 
against every appeal for mercy in her behalf, and 
hurried this hapless woman almost unshrived to the 
gallows." 

What a picture is this ! 

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HER VINDICATION. 257 

The minion of Stanton, the colleague of Bing- 
ham, the tutor of Weiehman, the terrorizer of 
Lloyd, the procurer of the death-warrant, weeping 
over the empty grave in the Arsenal, which, after 
his master's relentless watch was over, had at length 
given up its dead ! 

Here we are forced to stop. After such an exhi- 
bition, we can linger no longer over this miserable 
scramble to shirk responsibility. Its only conse- 
quence of historic importance, after all, is the light 
it casts upon the memory of the sacrificial victim. 
Out of the cloud of mutual vituperation, which 
covers the men who, among them, somehow, com- 
passed her slaughter, her innocence rises clearer and 
clearer, like the images of retribution from the foul 
fumes of the witch^' cauldron. 

Her vindication must be held to be final, com- 
plete and unassailable, when John A. Bingham is 
anxious to acquaint the country that he drafted a 
petition to save her life ; when J. Holt pretends to 
weep for her ; when Andrew Johnson is forced, by 
the inexorable pressure of events, to confess that 
when he signed her death-warrant he knew not what 
he did. 

As we let fall the curtain at the close of this dark 
and shameful tragedy, let us endeavor to anticipate 
the verdict of history. 

The execution of Mary E. Surratt is the foulest 
blot on the history of the United States of America. 
18 



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268 MARY £. SURRATT. 

It was a violation of the most sacred provisions 
of that Constitution, whose enforcement was the 
vaunted purpose of the War. 

It was a violation of the fundamental forms and 
principles of criminal jurisprudence, centuries older 
than the Constitution. 

It was a violation of that even-handed justice, 
which is said to rule in the armies of Heaven and 
among the inhabitants of the earth. 

It was a violation of those chivalrous impulses 
which spring unbidden to the manly breast in the 
presence of woman. 

It was a violation of the benign precepts of Jesus, 
which enjoin tenderness to the fatherless and the 
widow. 

It was a violation of the magnanimity of the brave 
soldier, which scorns to wound the weak, the fallen 
and the helpless. 

It was a violation of even the common instincts 
of fairness, which subsist, as a matter of course, 
between man and man. 

It was unconstitutional. It was illegal. It was 
unjust. It was inhumane. It was unholy. It was 
pusillanimous. It was mean. And it was each 
and all of these in the highest or lowest degree. It 
resembles the acts of savages, and not the deeds of 
civilized men. 

The annals of modern times will be searched in 
vain to furnish its parallel. Execrations rise to our 
lips, as we read, in the pages of Macaulay, of the 



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HER VINDICATION. 259 

hangiog of Alice Lisle, and the burniDg of Elizabeth 
Gaunt. But Alice Lisle and Elizabeth Gaunt were 
indicted by grand juries, tried by petit juries, found 
guilty, and sentenced, in strict accordance with crimi- 
nal procedure. The forms of law, which the bigoted 
James, and even the infamous Jeffrey, were careful 
to observe, were swept aside by Holt and Bingham 
and Stanton, with a sneer. 

We turn aside with sickening horror from the 
recital of the murderous orgies of the Terrorists of 
the French Revolution — shedding the blood of the 
young, the tender, the beautiful, the brave. But 
the Terrorists of France could plead the excuse, that 
they were driven to madness by the thought, that 
the invading hosts, encompassing the new-born .Re- 
public, were drawing nearer and nearer, every hour, 
with vengeance and counter-revolution perched upon 
their banners ; and a merciful destiny granted them 
the grace to expiate their bloody deeds on the same 
scaffold as their victims. 

But, in the case of Mary E. Surratt, not a single 
redeeming feature relieves 

** The deep damnation of her taking off." 

Alas ! Alas ! Right in the centre of the glory 
which beams from the triumph of the Union and 
Emancipation, there hangs a dark figure — casting 
an eclipsing shadow^-ever widening — ever deepen- 
ing — in the eyes of all the coming generations of 
the just. 



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